' ABAID ULLAH KHAN, J.-This petition under Article 199 of the Constitution calls in question the validity of the order of the Federal Land Commission, respondent, passed on the 24th December, 1976, in exercise of its suo motu revisional powers under the Land Reforms Regulation, 1972, Martial Law Regulation 115, declaring the transaction of gift of 994 kanals of land entered in Khatas Nos 10 and I situate in the area of village Jamal Dinwali, tahsil Sadiqabad, District Rahim Yar Khan, effected by Makhdoomzada Syed Hassan Mahmood. Petitioner 1, in favour of his wife, Mst. Azra Begum deceased, on the 1 1 th February, 1971, to be void. Petitioners 2 to 4 are daughters and petitioners 5 and 6 are sons of petitioner 1 and Mst. Azra Begum deceased.
2. The late Mst Azra Begum exchanged the land in dispute with that of his father-in-law, Makhdoomul Mulk Syed Ghulam Miran Shah, respondent 2 in Writ Petition No, 542 of 1979, and the latter subsequently sold the land to Mst. Taj Bibi and Mst. Parveen Bibi, petitioners in last mentioned writ petition, by means of a sale deed scribed on the 19th and registered on the 20th May, 1976. As the gift of the land by Makhdoomzada Syed Hassan Mahmood in favour of his deceased wife, Mst Azra Begum, was held by the respondent Commission to be void the petitioners in Writ Petition No 542 of 1979, felt that the impugned order of the Commission affected adversely their interests.
Therefore, they invoked the writ jurisdiction of this Court to get the impugned order of the respondent declared void and of no legal effect upon their rights. This judgment will dispose of Writ Petition No, 542 of 1979, alongwith this petition.
3. According to petitioner 1. An the 11th February, 1971, he made an oral gift of the land in dispute in 7:favour of his wife who accepting it received delivery of possession of the land and a mutation of the gift was entered with the Patwari the same day. When the mutation was put before the Revenue Officer on the 29th June, 1971, the parties to the gift were not found to be present as they had gone abroad. Therefore, the Revenue Officer rejected the mutation. No notice regarding holding of proceedings by the Revenue Officer on the 29th June. 1971, had been issued to the donor and the donee.
4. After her return from abroad the donee preferred an appeal against the order of rejection of mutation to the Collector. Sadiqabad, and simultaneously availed of the concurrent remedy of civil suit. The Civil Court granted her declaratory decree confirming her title to the land as donee on the 14th January, 1972. The Collector also accepted her appeal on the 17th January, 1972. The Mutation No, 115 of gift in her favour was consequently sanctioned on the 22nd January, 1972. The Deputy Land Commissioner, Rahim Yar Khan district, referred the case of the gift in question to the Land Commissioner. Bahawalpur Division, for decision touching its validity. Vide his order dated the 14th June, 1972, the Land Commissioner, Bahawalpur, held the transaction to be valid.
5. The Chairman of the respondent Commission formed the view that the gift was a sham transaction as it had not been accepted by the donee nor possession of the gifted property bad been delivered to her by petitioner 1. He noticed that the civil suit had been instituted by the donee on the 13th January, 1972, after the dead line of the 19th December, 1971. He considered the decree of the civil Court obtained by the donee to be collusive and the order of sanctioning the mutation based thereon on that account to be unacceptable. Accordingly he set aside the validation order of the Land Commissioner and declared the alienation to be void.
6. The learned counsel for the petitioner contended that the donor and the donee were husband and wife living together and in such circumstances entering and attestation of mutation in the revenue register would he taken to constitute delivery of possession of the land pursuant to the gift.
He submitted that the donee's efforts to get the mutation sanctioned by taking resort to all the available remedies ; institution of suit in the Civil Court and filing of appeal before the Collector left no room for doubt that she had accepted the gift. A reference to paras. 152 and 153 of Mulla's Muhammadan Law (16th Edition) would lead to the inference that delivery of possession of the property in dispute by the donor to the donee was complete. The donor and the donee were living as husband and wife together. The land was in cultivating possession of the tenants. Therefore, entering of mutation touching the gift in dispute by the donor with the revenue authorities long before the dead line of the 19th December, 1971. Would amount to his declaration of gift and would complete the process of delivery of possession. The gift was no doubt accepted by the donee as is confirmed by her subsequent efforts to get the mutation attested. The decree that she obtained from the civil Court can hardly be called collusive. She had per force to bring a civil suit as mutation had not been sanctioned due to her and her husband's being out of the country when it came up before the Revenue Officer for that purpose. On her return from abroad she pursued the legally tenable course of filing civil suit and appeal to the revenue authorities for getting the mutation sanctioned. She could not do otherwise to get the matter set right. The civil litigation was based on the mutation which had been registered with the revenue authorities long before the introduction of the land reforms on the 19th December, 1971, and being the natural and legally permissible remedy for her to adopt the decree obtained in consequence thereof could scarcely be said to be collusive especially, as noted above, when the donor had already declared his intention of making the gift, delivered possession of the subject-matter of the gift and the donee had accepted the gift months before the suit was filed. Hence to all intents of purposes the transaction of gift of the land in dispute effeeted by the petitioner in favour of his wife was genuine.
The view of the Land Commission dubbing the transaction to be fictitious was not legally correct.
Even otherwise under the second proviso to para. 7 (1) (b) of the Land Reforms Regulation the gift in question having been made by the petitioner in favour of his wife, who was his heir, is immune from bcing declared void.
7. The cases Shamshad Ali Shah v. Hassan Shah (I), Ibrahim v. Wazir Begum (2), Farid v. Nur Bibi (3) and Eidun Nisa Begum v. Member (Ravenue), Board of Revenue (4) cited at the bar on behalf of the respondent, are not helpful to advance the case of the respondent. Shamshad Ali Shah v. Hassan Shah, the donor was of 65 years of age, suffered from pneumonia and apprehending death had made gift an hour or two before he expired. It was treated as a marz-ul-maut gift and valid only to the extent of I/3rd of the gifted property.
8. The rule laid down in Ibrahim v. Wazir Begum and Farid v. Nur Bibi rather supports the petitioners' case. Ibrahim v. Wazir Begum was a case wherein physical parting with possession of the gifted property when gift was made by the father to his daughter was held to be unnecessary. In Far id v.
Nur Bibi, where the husband, who had gifted the land in favour of his wife at the time of marriage, was found to have paid the land revenue and changed tenants it was held that in the view of the relationship between the parties it must be presumed that these acts were done by the husband on behalf of his wife and not on his own thereby negativing the suggestion that the possession of the gifted land had not been delivered to the donee.
9. The facts of Eidun Nisa's case are quite distinguishable from those of the instant case and, therefore, the rule laid down therein is hardly applicable here. In the precedent case all the seven gifts were entered after the donor had died and two of the mutations which had been entered during his lifetime be had refused to acknowledge and consequently the same were rejected. It was in this background that the transactions were not accepted for lack of declaration of intention of gift by the donor.
10. In view of the above both the petitions are accepted and the impugned action of the respondent holding the alienation of gift of the land in dispute to be void is declared to be unlawful and of no legal effect. The parties are left to bear their own costs of the petitions. {{FOOT NOTE}}
(1) PLD 1960 Lah. 300 (2) PLD 1967 Lah. 1087
(3) PLD 1970 Lah. 502 (4) PLD 1973 Pesh. 1 {{FOOT NOTE}}