' ZAFFAR HUSSAIN MIRZA. J.-This judgment will dispose of Constitutional Petitions No, D-117/77 and No, D-12307 as these petitions arises out of a common order passed by respondent No. 1 in the two petitions.
2. The petitioners in both petitions are alienees of agricultural land from respondent Mohammad Hassan Halepota during the relevant period prescribed under the Land Reforms Regulation, 1972 (hereinafter referred to as the Regulation). By the impugned order the 0. S. D., Federal Land Commission, respondent No. 1 declared all the alienations in favour of the petitioners in the two petitions as void for the purposes of the Regulation. The petitioners seek to challenge the order as passed without lawful authority and of no legal effect.
3. In Constitutional Petition No, D-117/77 respondent Mohammad Hassan sold agricultural land comprising an area of 105-31 acres of agricultural land bearing Survey Nos. 223/A ; 225-229 ; 231/A : and 235 to 241 ; situate in Deh Banusar, Taluka Khipro, District Sanghar for a total consideration of Rs, 50,000 to the petitioner by Registered Sale Deed dated 16th June, 1971. The petitioner was delivered possession of the land in pursuance of the transaction and the Revenue Record of Rights.
Was duly mutated in his favour.
4. In Constitutional Petition No D-123/77 the petitioners are the sons of the aforesaid respondent Mohammad Hassan. Through a statement recorded by the Mukhtiarkar, Khipro on 11th March, 1969 Mohammad Hassan alienated an area of 243-4 acres in Deh Malook Halepota, an area of 228-36 acres in Deh Fateh Mohammad Mushahid_ and an area of 244-21 acres in Deh Allah Khahi of Taluka Khipro, District Sanghar in favour of the petitioners, by way of gift under the; Muslim Law.
Pursuant to the aforesaid statement of gift, the Revenue Record of Rights pertaining to the respective Dehs was mutated_ on various dates between 11th March, 1969 to 10th August, 1969.
5. On the promulgation of the Regulation Mohammad Hassan disclosed his landholding as well as the alienations made by him in favour of the petitioners in the declarations filed by him with the relevant Authorities. The Land Commissioner, Sind after the necessary scrutiny and enquiry upheld the alienations in favour of the petitioners as bona fide and valid within the meaning of paragraph 7 (1) (b) of the Regulation. In regard to the sale transaction he found the consideration to be adequate and the transferee to be in effective possession of the land in question as well as that the same is being managed and enjoyed by the purchaser who was also paying the land revenue himself. As to the gifts also the Land Commissioner reached a finding that the donees were similarly in. Effective possession of the property and were managing the same as well as paying the land revenue,
6. Pursuant to the instructions of the Member, Federal Land Commission, however, the case of alienations by way of gift in favour of petitioners in C. P. No, D-I23/77 was re-opened in the Suo Motu Revisional jurisdiction on the objection that the alienations were invalid for want of acceptance on the part of the donees on the record. After holding an enquiry and hearing the declarant Mohammad Hassan, the Additional Chief Land Commissioner, Sind held that he was 'satisfied that the statement of the gift was properly recorded and duly attested by the" Mukhtiarkar and was followed by mutation in Village Form No, 7 before the crucial date. He accordingly expressed the opinion that the alienations were genuine and that the donees being minor sons of the declarant, no formal acceptance on their part was required in law. By order dated 24th July, 1974 the Additional Chief Land Commissioner maintained the order of the Land Commissioner and declined to interfere with it.
7. In spite of the above the respondent No. 1, Officer on Special Duty, Federal Land Commission, in exercise of his powers under Paragraph 29 of the Regulation took up proceedings purported to have been initiated on the report made by the Head of the Sind Inspection Team, Federal Land Commission, "Hyderabad. Before him the objection as to the sale transaction was confined to the alleged inadequacy of the consideration and as to the gifts the same objection was raised, namely, that the gifts were incomplete for want of acceptance on the part of the donees as well as the transfer of possession. After hearing the concerned parties the learned Officer passed the impugned order' declaring the alienations as void and ineffective for the purposes of the Regulation.
8. I shall first take up the case of the petitioner in C. P. No, D-117/77. Mr. Imam Ali Kazi, learned counsel appearing for the petitioner, upon a preliminary objection urged that the respondent No 1 had no further jurisdiction to exercise powers under paragraph 29 of the Regulation inasmuch as the said powers stood exhausted in the proceedings taken by the Additional Chief Land Commissioner, Sind upon a reference by the Federal Land Commission. The argument was that paragraph 29 confers revisional powers to be exercised by the Federal. Government of any person authorised by it in that behalf and, therefore, when a reference is made by the Member, Federal Land Commission to the Additional Chief Land Commissioner raising certain objections to the validity of any order passed by a subordinate authority, the Additional Chief Land Commissioner exercised powers under paragraph 29 as a person authorised thereunder. In this behalf the learned counsel invited or attention to the observations made in the order of the Additional Chief Land Commissioner dated 24th July, 1974 to the effect that the Member, Federal Land Commission had raised objection that the alienations made by way of gift to heirs are not valid for want of acceptance by the donees. In the first place the question of reference by the Federal Land Commission as to the validity of alienation in favour of the petitioner by sale transaction does not arise. Secondly, the argument is misconceived in so far as the Federal Land Commission is not the authority contemplated in' paragraph 29 to authorise any person to exercise powers tbereunder. A plain reading of the said paragraph shows that basically the power was conferred on the Federal Government who may authorise any person to exercise the same. The Federal Land Commission is nowhere in the picture so far as paragraph 29 is concerned. It was by notification issued by the Federal Government, in the Cabinet Division bearing No, 7/-18/72/Cord.
1. Dated 23th October, 1973 that in exercise of powers conferred under Paragraph 29 the Federal Government authorised the Chairman and the Members of the Federal Land Commission for the purpose of the said Paragraph. Thus powers under Paragraph 29 could only be exercised by the Chairman and the Members of the Federal Land Commission as authorised persons and by no one else. The Addi tional Chief Land Commissioner was, therefore, not exercising powers under Paragragh 29 and as such it cannot be argued that the respondent No. 1 could not exercise the power under paragraph 29 as it stood exhausted. The Federal Land Commission was constituted under paragraph 4-A of the Regulation and was vested with all the powers necessary for the implementation of the Regulation. Consequently, it was competent to issue any direction to the Provincial Land Commissions or Officers subordinate to them for re-examination of a case in order to ensure proper implementation of the Regulation. We, therefore, find no force in the preliminary objection raised by the learned counsel.
9. The learned counsel next assailed the impugned order on the ground that the learned Officer exercised his jurisdiction arbitrarily against the evidence on record, without holding any further enquiry. Counsel argued that it was not open to the learned Officer to upset the finding of fact by the Land Commissioner without further positive evidence showing that the consideration for the sale was inadequate. The respondent No. 1 set aside the sale transaction for reasons which may be mentioned in his own words as under :- "So far sale transactions are concerned, the declarant sold the land to respondents Nos. 2 and 3
(torn) price of less than Rs, 500 per acre. The Tapedar present before me stated that the land involved in the sale was good quality. The average price of Deh as reported by the Inspection Team, comes to Rs, 800 per acre. Thus the consideration paid for these alienations is not adequate."
' The petitioner has placed on record certified copies of Extracts from the Record of Rights of sales in the same Deh regarding three transactions, two in 1971 and one in 1974 in which the consideration paid for the land was below Rs, 500 per acre. According to the petitioner even today the prevailing market price of the land in the same Deh is Rs, 450 per acre, in support of which he has produced a Certificate issued by the Mukhtiarkar, Khipro dated 31st January, 1977. These facts and documents have not been denied by the respondent No. 1. As against that the learned Officer relied upon a report by the Inspection Team for which no basis has been indicated. In any case the estimate of the average price reported by the Inspection Team can at best be a rough approximation and in or opinion the disparity is not so great to be the sole basis for holding that the consideration in the impugned transaction was inadequate. In the very nature of things many factors, like personal reasons, situation of the land, its quality and availability of water influence the consideration for a transaction in a given case. The question of the adequacy or otherwise or consideration has become relevant in determining the bona fides of a transaction under paragraph 7 (1) of the Regulation because of Explanation III attached to it. It will be convenient to set out Explanation III which reads as under :- "Explanation 111.-In determining whether a transaction referred to in clause (b) of paragraph (1) was bona fide or otherwise, the Commission shall, among other matters, take into consideration the following factors :-
(i) Whether adequate consideration has been paid by or on behalf of the person in whose favour the transfer has been made or any right. Interest or encumbrance has been created ;
(ii) under whose management the land has remained which is claimed to have been transferred or in respect of which any-right, interest Of encumbrance has been created ;
(iii) who has been paying the land revenue and other charges in respect of such land ;
(iv) who has been receiving the rent for or bata share from such land.
The plain reading of the Explanation makes it clear to us that the question of adequate consideration is only one of the factors to be taken into consideration among other matteRs, Therefore the mere fact that the consideration for a transaction may appear to be inadequate cannot be the sole basis for rejecting a transaction as not bona fide and if upon the other considerations mentioned in Explanation III the Commission finds that the transaction is bona fide, it will not be under any obligation to reject the same. In this case the other factors taken into consideration by the Land Commissioner were that the transaction was by a Registered Sale Deed, Mutation had been effected before the crucial date and transferee was found to be in effective possession and Management of the property and was paying land revenue. The learned Officer did not upset the findings on the other considerations which in or view cumulatively fully justified the order passed by the Land Commissioner.
10. Mr. Hasnain, learned counsel appearing for the official respondents sought to dispute the fact that the transaction was through a Registered Deed, but this fact cannot be disputed for the first time before us as the Land Commissioner has mentioned in his order that the transaction was through a Ragistered Deed and the learned respondent No, I did not say anything contrary to that in the impugned order. As already pointed out, so far as this case is concerned, the only objection referred to and considered by the respondent No, I, was that the sale transaction was invalid on account of inadequate consideration. The learned counsel for the respondents was not justified to support the order on a basis entirely extraneous to the impugned Order.
11. For the foregoing reasons, the impugned order so far as it relates to the sale transaction is unsustainable.
12. Coming now to the transaction of gift under C. P. No, D-123/77, the learned Officer in the impugned order has taken the view that the gift statement was a suspicious document for the reason that the statement was recorded by the Supervising Tapedar in the Book of Statements maintained by the Revenue Office which remains in the charge of the Tapedar of the Beat. It was observed that the prevailing practice was that such statements are recorded by the Tapedar and the scrutiny of the relevant page of the Register on which the statement was recorded shows that another statement was also recorded on the same leaf of the Register by the same Supervising Tapedar, but the ink of the two statements diffeRs, It was next noticed that only these two statements were recorded by the Supervising Tapedar while all other statements in the Book were recorded by the Tapedar. For these reasons the learned Officer reached the conclusion that the statement evidencing gifts by the declarant in favour of the petitioners in this petition was not a genuine statement recorded on the purported date shown therein but was subsequently managed. He also held that the transfer of possession was not proved. Learned counsel for the petitioners argued that the facts on record were to the contrary. He pointed out that the declarant made alienations in favour of his sons (the petitioners) by gift in separate Dehs and the statement was recorded in presence of the Mukhtitiakar, Khipro as evidenced-by the true Copy of the statement (Annexure On the same day mutation was effected in Deb Form No, VII by the concerned Tapedar on the basis of the aforesaid statement in respect of land situate in Deh Allah Khahi (vide certified copyAnnexure `B'). In the case of the other two Dehs mutation entries were effected on 15th April, 1969 and 10th August, 1969 (Annexures C and `D') by the respective TapedaRs, The learned officer does not seem to have taken into consideration the mutations effected in villages Form No, VII but proceeded on the basis that mutations in village Form No, III-A were not affected upto 1970-71, which, however, means that by the crucial date viz. 20th December, 1971, the mutations regarding the gifts were effected. The original Registers maintained by the Revenue Staff were produced before us by the learned counsel for the respondents. Their perusal shows that necessary mutation entries were made properly in Village Form No, VII in each Deh which were by the respective Tapeders on the dates mentioned above which have been verified by the Supervising Tapedar on the various dates of entry. There appears to be nothing suspicious about these entries which can cast any reflection on the genuineness of these entries.
We have also perused the.Book of Statements for Tappo Halepotani, Taluka Khipro, District Sanghar which shows that the statement of the declarant regarding the gift alienations in favour of the petitioners was recorded on the reverse of leaf 22. There are a number of statements recorded in this Book with effect from December 1967 which bear the signature of the same Supervising Tapedar who had signed the statement disputed in this case. Even the statements recorded afterwards in the Book bear the signature of the same Supervising Tapedar. We are unable to understand how the learned Officer assumed that the statement in question was recorded by the Supervising Tapedar. It appears to us that as a matter of practice every statement before being put up for authentication by the Mukhtiarkar was invariably signed by the Supervising Tapedar. But this does not mean that the statement was recorded by the latter. It is also not correct that only two stetements do not bear the signatures of the Tapedar as observed in the impugned order. The following two statements on leaves 23 and 24 dated 15th March, 1969 also not signed by the Tapedar. We, therefore, regret to observe that the learned Officer upset the finding of fact on purely subjective and untenable view of the record which appears to be entirely unfounded Be that as it may, as pointed out above the learned Officer had taken up Suo Motu proceedings on the objections raised by the Inspection Team in which the only objection urged in respect of the gift transaction was that the gifts were incomplete and invalid for want of acceptance on the part of the donees and transfer of possession. The impugned order makes reference to these objections in the opening part. It, therefore, follows that the genuineness of the gift statement was never brought into question, nevertheless, the learned Officer travelled beyond the scope of these objections to question the validity of the recorded statement. This in or opinion could not be done. The correct position as discussed above was truly recorded in the order of the Additional Chief Land Commissioner dated 24th July, 1974 in which the learned Officer made the following revealing observations "There has been delay in checking and attestation of entries in Village Form No, VIII, but from the land revenue receipts and the entries in Village Form No, VIII-A, I am inclined to believe that the possession was transferred to the donees before the crucial date and the alienations are genuine.
Besides, consent in the case of minor sons could be implied."
' It is regrettable that the learned respondent No. 1 in the impugned order did not advert to these findings of a responsible officer of the Sind Land Commission.
13. We are also of the opinion that the alienations by way of gift are not open to any exception on the ground that acceptance of the donees was not available on record. The precise question came up for consideration before a D. B. Of this Court in All Ahmed v. Government of Sind. It was held in this case that a gift under the Muslim, Law of lands in occupation of haris may be completed by the donor asking the haris to attorney to the donee, or by delivery of title deeds, or by getting the mutation entries effected in donee's favour in the Record of Rights. It was further held : "No transfer of possession is required in the case of gift by a father to his minor child or by guardian to his ward. All that is, however necessary is to establish the bona fide intention to make the gift. The requirement of change of possession in such a case-is not necessary for the father himself is the person to receive possession as the guardian of his son". In the present case it is not disputed that for of the petitioners are minors and, therefore, the transfer of possession by their father was not required as a requisite condition for the validity of the gift as held in the case of Ali Ahmed referred to above. Similarly, the absence of any record regarding acceptance of the gift by the major donees is immaterial where the donor willingly obtained mutation of entries in favour of the donees. There was abundant evidence produced before the learned Additional Chief Land Commissioner regarding the possession of the donees after the gift was made. For these reasons, we find that the impugned order as regards the gift alienations is also wholly unsustainable.
14. In the result, we allow this petition and set aside the impugned order dated 17th December, 1976 passed by respondent No. 1 so far as it relates to the alienations in favour of the petitioners in the two petitions. The result will be that the earlier order passed by the Land Commissioner, Sind declaring the said alienations as valid shall stand restored. There will be no order as to costs
(I) PLD 1976 Kar. 316