' The petitioners challenge the orders dated 7th February, 1980 as well as 7th June, 1974 passed by respondent No, 1, refusing to validate a gift under Martial Law Regulation No,
115. Briefly, the facts of this case are that petitioner No, 2, the mother, reported making of a gift to petitioner No, 1, her son, on 28th April, 1971 of half share of her agricultural land, measuring 1,403 Kanals 6 Marlas, situate in village Syedwala, Rakh Dhalla, Tehsil and District Kasur. The factum of the gift as well as delivery of possession is alleged to have been recorded in the Roznamcha Waqiati' of the same date. A mutation was also recorded at serial No, 574, by the Patwari which was also verified by the Girdawar on 28th April, 1971. This mutation was, however, never placed before the concerned revenue officer for attestation.
2. On 5th April, 1972 the Patwari made a report that the agreement bad been cancelled and, therefore, the mutation be rejected. The revenue officer acted on this report ex parte and rejected the mutation. Petitioner No, 2 filed a petition for the purpose of review of the order which was granted by the Collector. The case was, however, still with the Collector when a declaration was filed by petitioner No, 2 under Martial Law Regulation No,
115. The Collector recommended to the Land Commissioner to treat the alienation by way of gift as valid. The Land Commissioner vide his order dated 6th July, 1972, sent up the case to the Land Commission, seeking clarification under para. 4 (6) of MLR-115 on the point whether the transfer would be deemed to have been effected from 26th April, 1971, or 5th April, 1972. The Land Commission, however, rejected the same with an observation that it shall be deemed to have been effective from 5th April, 1972.
3. When the matter came back before the Land Commissioner he, vide his order dated 16th October, 1972 held the gift invalid, for the purpose of MLR 115, on the ground that petitioner No, 1 being a minor, the delivery of possession was doubtful.
4. Petitioner No, 2 took an appeal before the Chief Land Commissioner who remanded the case to the Land Commissioner, as per his order dated 31st January, 1973. He, however, again rejected the alienation as invalid. A revision petition before the Additional Chief Land Commissioner met with the same fate and was dismissed vide order dated 17th January, 1974. The Federal Land Commission also rejected a further revision petition before it on 7th June, 1974 with an observation that a gift by the mother in favour of her 'minor son was to be accepted by the father of the minor, so as to become effective. No further proceedings were taken against the said order. Till 7th February, 1980 when the Federal Land Commission rejected a review petition of petitioner No, 1 who had approached it after attaining majority.
5. It is contended by the learned counsel that as the petitioners had not been given an opportunity of being heard, while passing the order dated 7th June, 1974, the impugned orders are void and liable to be set aside. This contention, however, is factually incorrect. It is to be noted that petitioner No, 1 as well as petitioner No, 2 were represented before the Chief Land Commissioner through very senior counsel when he remanded the case vide order dated 31st January, 1973. They were also represented before the Additional Chief Land Commissioner when he passed his order dated 17th January, 1974 after remand. No revision petition was filed by petitioner No, 1 before the Federal Land Commission. He was, however, impleaded as a respondent by petitioner No,
2. In case, his guardian was aggrieved, he could have filed a revision petition on his behalf also. Petitioner No, 2 or the father of petitioner No, 1 took no further proceedings for about six years. It was, thereafter, that petitioner No, 1 filed a review petition, allegedly on attaining majority but apparently to start a fresh round of litigation on that pretext. In any case, both the mother and father, were contesting, and the rights of petitioner No, 1 were never jeopardised. The mother has even now joined him. Anyhow, the objection that he was not heard is quite misplaced as the petition was dismissed in limine.
6. The learned counsel for the respondents has also relied on the order dated 30th June, 1973, passed by the Land Commissioner on remand showing specifically that the case had been remanded to him, inter alia, for the reason that the donor or the donee be heard. He, therefore, issued notices and Mr. M. Tufail Advocate appeared on behalf of the present petitioners. In the circumstances it is not correct to say that the petitioners had not been given an opportunity of being heard.
7. The learned counsel for the petitioners then submitted that the Federal Land Commission misread the record and misapplied the law inasmuch as that no transfer of possession is necessary in case of a gift to a minor made by his mother. Reliance is placed on paras. 155, 160 and 361 of Mohammadan Law by Mulla in this regard. Support is also sought from Mohammad Afzal Khan v. Mst. Khurshid Begum, where a gift by an adoptive father, without delivery of possession to the father of a minor, was held to be valid. In Hakim Khan v. Aurangzeb, learned Single. Judge upheld a gift by a father to his minor son or by guardian to a ward without delivery of possession.
Again in Syed Ghulam Shah v. Syed Jahandar Shah the failure to hand over possession of an undivided property, if the donee was otherwise in a position to exercise control over it, was considered not to derogate from completing the gift.
8. It is correct that no transfer of possession is necessary when a gift is made by a father to his minor son or guardian to a ward. The learned counsel, however, has not been able to refer to any text case law to show that a gift by the mother to a minor son without delivery of possession to the guardian, or father (natural guardian) is valid. The learned counsel for the respondents, on the other hand relied on Sunah Meah v. S. A. S. Pillai to defend the order passed by the Federal Land Commissioner. The view taken in that case, on the strength of a Privy Counsil Judgment, was that in case of minor donee, possession must be handed over to his natural guardian. The (4) 11 Rana inn principle, it was observed cannot be extended to a gift by the grandfather to his minor grand-son if1 2 3 4 his father is alive and is not deprived of his right and power as guardian, even though the minor be living with the grand-father. The learned counsel has also referred to paras. 155 and 516 of Mulla in this regard.
9. The established legal position is that gift is a transfer of property made immediately by one person to another and acceptance by or on behalf of the latter. Thus delivery of possession and acceptance of gift is necessary to complete the same. Para. 156 of Mulla, lays down that gift to a minor or lunatic may be completed by delivery of possession to the father or guardian. An exception is made in para. 155 where the gift is by the father or the guardian. No other exception is there and so the gift will not be valid even if it was proved that the donor had done all what she had to do in this regard.
10. In the case in hand, a report was made to the Patwari allegedly by the mother about the gift on 28th April, 1971. N further proceedings were taken before the revenue officer till 5th April, 1972.
Neither the mother nor the father of petitioner No, 1 did anything for a year and no one appeared to state before an revenue authority that the mother had made a gift. Even the father did not say that he had accepted it. There is no change made in any record to support it. No fee was paid to the District Council. A mere report made to a Patwari, therefore, could not have established either the making of the gift or the delivery of possession. As the situation was prevailing till after the promulgation of MLR 115, the Land Commission authorities were justified in treating as if no gift had been made and, therefore, could not give an allowance to petitioner No, 2 to exclude the said land out of her declaration. Petitioner No, 2, therefore, can certainly make a valid gift even now but she cannot ask the Land Commission authorities to give an allowance on that account in her declaration.
11. The learned counsel then referred to proviso to para. 7 (1) (b) of MLR 115 to say that in case an alienation is made by a person in favour of his/her heir, clause (d) would not apply. Clause (b) declares void any transfer of land and creation of any right or interest in or encumbrance on any land made in any manner, whatsoever, by any person holding on 1st March, 1967, an area equivalent to more than 15,000 Produce Index Units, save where the transaction is bona fide to the satisfaction of the Commission. The proviso, however, excludes an alienation made by a person in favour of his heir. This provision makes it absolutely clear that there should be an alienation made by a person in favour of his/her heir before the same can be excluded. An alienation would necessarily mean, in the case in hand, an intention to make a gift, its acceptance as well as delivery of posession. As said above, this has not been done here. In this view of the matter the proviso will not apply.
' For the reasons given above, there is no justification to interfere with orders passed by the authorities below. This petition is consequently dismissed with costs. PLD 1975 Pesh. 24 PLD 1975 Lah. 1170 PLD 1971 Kai-. 708 II Rang 109