Judgement

Appeal (No. 54 of 1946) from a judgment and decree of the High Court (October 11, 1944), which affirmed a judgment and decree of the Senior Subordinate Judge, Lyallpur (November 12, 1942).

The suit giving rise to this appeal was instituted by the respondents on March 23, 1942, for a declaration that the first respondent was the full owner of the land in dispute, which had originally been granted under the Colony Act, 1893, to one Mokham, whose widow, the second respondent, was the mother of the first respondent. The appellants were collaterals of Mokham. The principal question in the appeal was whether a condition imposed by the Commissioner and upheld by the Financial Commissioner that the widow, who had been granted proprietary rights in the land, should not alienate the land during her tenure " without the concurrence of the " reversioners," the appellants, was in excess of their powers.

The trial court and, on appeal, the High Court (Trevor Harries C.J. and Mehr Chand Mahajan J.) held that the condition was ultra vires the executive authority.

1947. June 26. Chinna Durai for the appellants.

Umrigar for the respondents.

July 24. The judgment of their Lordships was delivered by LORD SIMONDS. This appeal from a judgment and decree of the High Court of Judicature at Lahore, affirming a decree and judgment of the Senior Subordinate Judge at Lyallpur, raises questions of some importance in regard to the powers of the executive authorities under the Colonization of Government Lands Act, 1912. The facts are simple and not in dispute. The lands in question in the case, which are situate in the district of Lyallpur, were at some date not made known to their Lordships granted under the Colony Act, 1893, to one Mokham on what is described as the usual colony tenancy. He died and was succeeded by a son named Jhanda who died without issue and was in turn succeeded by his mother Musammat Hayat Bibi, the widow of Mokham. At some date, which also does not clearly appear, the widow made an oral gift of the land to her son Iman Din. If she had full pro prietary rights, she was competent to do so. Her competence has been challenged by the appellants, all of whom are collaterals of Mokham, under the circumstances which will now be stated.

On November 27, 1940, the widow being then the tenant of the land in dispute on the terms of the tenancy grant applied in accordance with its conditions in the court of the Collector, Lyallpur, for the acquisition of proprietary rights therein on payment of the zar-i-milkiat or proper purchase money. The Collector, who must be regarded as having acted as a Deputy Commissioner, made the order asked for and the widow paid the purchase money. The appellants, though it has not been made clear to their Lordships what right they had to be present appear to have attended before the Collector and opposed the application, and, being dissatisfied with his order, they appealed to the Commissioner of Multa Division who, on May 29, 1941, varied the order by imposing the condition that the land should not be alienated during the tenure of the widow " without the concurrence of the " reversioners," i.e. the appellants. From this order the respondents in turn appealed to the Financial Commissioner of the Punjab, who, on March 4, 1942, affirmed the Commissioners order and rejected the appeal. He observed that the Deputy Commissioner (i.e. the Collector who acted as Deputy Commissioner) ought not to have given permission to acquire proprietary rights, but he agreed with the Commissioner that, as the proprietary rights had actually been paid for and the transaction was complete, its repudiation at that stage might involve unnecessary complications. He further said that in the grounds of appeal it had been urged that the Commissioner had acted ultra vires in attaching the condition in regard to alienation but that this point had not been argued before him. He thought, however, that as the Government was not under any o