The Member, Federal Land Commission, after holding that the expression "gift or otherwise" in second proviso to clause (b), para. 7 of Land Reforms Regulation, 1972 has to be construed ejusdem generis proceeded to examine the merits of the Sale Mutation No. 219 dated 28-1-1971 and held that it did not appear to be bona fide as the consideration did not and could not have passed because the alleged vendees were minor sons of the vendor and there was nothing on record to show that they had any independent means. Aggrieved by it the declarant and the vendees have invoked the Constitutional jurisdiction of this Court. .
2. Sardar Abdul Ghafoor Khan was the declarant. He had got entered a sale mutation on 11-1-1971 in favour of his three minor sons by which he sold 135 acres 5 kanals and 6 marlas of land equivalent to 6,470 P. I. Units in Chak No. 582/G B, Tehsil Jaranwala, District Faisalabad, for a consideration of rupees one lakh, advanced by the grandmother of the minors. Earlier this sale transaction had been examined by the Land Commissioner, Multan, who bad upheld its validity and allowed its benefit to the declarant by an order dated 8-5-1973. He had observed that the transaction was genuine as it was between the father and the sons who could have otherwise also received the land in question as a gift, being his legal heirs. Subsequently, in suo moto revision, this matter came to be examined over again by the Single Member of the Federal Land Commission.
2. There are two objections taken on the legal plane to the impugned order. The first is that an individual member of the Federal Land Commission could not exercise the powers specifically reserved for and exerciseable by the Federal Land Commission. Reliance is placed in support of this ground on decision in Sardar Ashiq Mohammad Khan Mazari and 3 others v. Chairman, Federal Land Commission, Islamabad and 4 others (PLD 1977 Lah. 461The other ground taken up is that the interpretation of para. 7 (b) of the Land Reforms Regulation by the Member Federal Land Commission is untenable. So far as the first legal objection is concerned, it stands disposed of in view of the validation clause introduced by amendment in law effected by Ordinance No. XXIX of 1978.
3. As regards the second legal objection, it is necessary to reproduce the provision of law requiring interpretation. It is para. 7, clause (b), proviso as further controlled by proviso No. (i)
"7. Certain transfers void.-(1) Save as otherwise provided in this Regulation
(a) ---.
(b) save in cases where the Commission is satisfied that it was a bona fide transaction, the transfer of any land and the creation of any right or interest in or encumbrance on any land, made in any manner whatsoever, by any person holding (at any time during the period from the first day of March. 1967, to the nineteenth day of December, 1971 (both days inclusive) an area equivalent to more than (twelve thousand produce index units) (calculated on the basis of classification of soil as entered in the Revenue Records for Kharif 1966 and Rabi 1966-67), shall be and shall be deemed always to have been void, and the land so transferred or the land on which the right, interest or encumbrance was so created shall be, and shall be deeded always to have been, owned - or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date (Provided that any transfer of land or creation of any right or interest in or encumbrance on any land by way of gift by a person to whom this clause applies shall, subject to the next succeeding proviso, in no case be held by the Commission to be a bona fide transaction Provided further that nothing in this clause shall apply to :
(i) any transfer of land or creation of any right or interest in or encumbrance on any land, by way of gift or otherwise, made by a person in favour of his heirs ; or
(ii) any transfer of land or right or interest therein by way of gift, made by a person in favour of his widowed or unmarried sister, who has not received her due share of inheritance of ancestral land ; or
(iii) any transaction whereby any land was alienated in exchange for an area of land equivalent to the same or substantially same produce index units as the land alienated)."
The word "otherwise" according to its dictionary meaning connotes "in any other way" or "any other ways". Its plain ordinary meaning has therefore the effect of enlarging the category of the transactions described by the preceding word or phrase. It is a word of the widest amplitude.
Notwithstanding this even in a two worded phrase like gift or otherwise, if the context irresistibly so indicates, a restricted meaning can be attributed and the principle of ejusdem generis applied (vide 70 L Q R 172).
5. The difficuity in applying the principle of ejusdem generls in this case in particular is the absence of genus, class or category and the near impossibility of determining it by mere inference. There is hardly a transaction which can be visualised as is in the nature of gift without being a gift and is not a sale, exchange etc.
6. The context and the preceding statutory position irresistibly indicates to contrary. The proviso which requires interpretation is not a proviso to the first proviso but is a proviso to the main clause
(b) of paragraph 7. That clause deals with "the transfer of any land and the creation of any right of interest in or encumbrance on any land made in any manner whatsoever". The proviso that governs it is that nothing in the clause shall apply to any "transfer of land or creation of any right or interest in or encumbrance on any land by way of gift or otherwise made by a person in favour of his heirs". On this view the proviso does not travel beyond nor does it obliterate the clause of which it is a proviso. On the contrary it makes the clause inapplicable to a small category of alienations made by a person in favour of his heirs. Such an interpretation satisfies all the rules of interpretation governing a proviso.
7. It is also difficult to visualise, apart from transfer of land, creation of any right or interest in or encumbrance on any land by a process of gift. The proviso by its first clause not only deals with the transfer of land but also with the creation of any right or interest in or encumbrance on any land which of necessity has to be effected by transactions materially different from those of gift.
Therefore, the meaning of the word "otherwise" does not get restricted by reference to the context.
On the contrary all the indications are that it has to be read as extending the modes by which such transfer could take place or right or interest could be created.
8. Before its amendment, as originally enacted, para. 7 while declaring certain transfers void in retrospect by clause (b), contained a proviso that "nothing in this clause shall apply to an alienation made by a person in favour of his heir". On the 8th August 1972, clause (b) of para. 7 was retros. Pectively amended. The idea behind it appears to be not only to protect the past alienations covered by clause (b) of para. 7 in favour of persons who were heirs but others whose claim could reasonably be considered to be equally worthy of consideration, though not falling in the category of heirs. The category so included was of widowed or unmarried sisters who had not received share of inheritance of ancestral land. Another category introduced was, of transaction by which any land was alienated in exchange for an area of land equivalent to the same area having substantially same produce index units as the land alienated. The purpose of this amendment which is now the subject matter of interpretation appears to be to mitigate the rigour of retrospective nullification of transactions. The protection that was earlier afforded to Alterations in favour of heirs was not in any manner reduced or curtailed. Instead the protection on satisfaction of certain conditions was allowed to persons who were not heirs but closely related and to rank out.
Siders in the matter of certain exchanges. Therefore, this object of the law would also indicate that a restrictive meaning could not be given to the word "otherwise"
9. On the view that I have taken the Commission or a Member of it had no jurisdiction in law to consider the merits of the transaction made in favour of the heirs during the period prescribed in clause (b), para. 7 of the Regulation. Therefore, the order is without lawful authority and of no legall effect. The petition is allowed accordingly with costs.