1. ' ZAFFAR HUSSAIN MIRZA, J.-This appeal by leave of this Court arises out of judgment dated 6-7- 1976, passed by a learned Single Judge of the Lahore High Court, by which a regular second appeal of the appellant was dismissed in limine.
2. ' The facts are that one Ladha son of Karam Din, maternal-uncle of the respondent, Allah Bakhsh, was an occupancy tenant of evacuee agricultural land comprising Khasra Nos. 624, 625, 640, 643, 644, 645, 682, 692 and 623-A, situate in village Malu Wala, District Gujranwala. He mortgaged his occupancy rights with possession to appellant Hussain to secure a loan of Rs, 4,000 by means of registered deed, dated 19-2-1953. Thereafter on 7-12-1959 Ladha made a gift of his occupancy rights in favour of the respondent also through a registered deed. In accordance with this deed Mutation No, 1010 was then attested in favour of the respondent. In the events that happened, however, Ladha succeeded in having the Revenue Authority review the mutation of the gift bearing No, 1010 on the ground that the gift made in favour of the respondent was without consent of the landlord. Consequently on 25-4-1970 Mutation No, 1010 was set aside. Immediately thereafter Ladha sold all his rights in the land in favour of the appellant on 6-6-1970 for the alleged consideration of Rs, 30,000 after obtaining permission from the Deputy Rehabiliation Commissioner exercising delegated powers of the Deputy Custodian. Prior to the sale he also redeemed the mortgage regarding which necessary mutation entries were made by the Revenue Authority. The two last mentioned transactions are evidenced by Mutations Nos. 1517 and 1564.
3. ' Respondent filed a civil suit on 13-11-1971 against the appellant and Ladha in the Court of Civil Judge, Second Class, Gujranwala, for a declaration to the effect that Mutations Nos. 1554 (setting aside the previous Mutation No, 1010), 1564 and 1517 were null and void and for consequential relief of delivery of the possession. Ladha did not contest the suit and was proceeded against ex parte but the appellant resisted the suit and contested the same. The suit was decreed by the trial Court on the ground that although the gift of the occupancy rights made in favour of the respondent was in violation of section 56 of the Punjab Tenancy Act, by virtue of section 60 of the said Act, the transaction was not wholly void ab initio but was voidable at the instance of the landlord and since in the present case neither the Custodian nor the Central Government had challenged the transaction, it was not liable to be ignored. In this view of the matter the Court held that as the rights possessed by Ladha already stood transferred to the respondent as a result of the gift transaction, he was not competent to transfer his rights to the appellant by way of sale as he stood already divested of all his rights. The allegations of the appellant that gift was ootained by fraud and misrepresentation were also rejected by the trial Court for the reason that no evidence was led by the appellant on this question. The decree passed in favour of the respondent was affirmed by the District Judge, Gujranwala and the appeal of the appellant was dismissed on 5-4-1976. The main contention advanced before the learned District Judge was that the gift of the occupancy rights made in favour of the respondent was illegal and ineffective in law as the consent of the Central Government which was the landlord was not obtained. Learned District Judge repelling the contention observed :- "The fact, however, is that the Central Government never challenged this gift in any proceedings and the appellant could have no locus standi to do so. As is apparent from the provisions of section 60 of the Tenancy Act, the gift was voidable at the option of the landlord but no such option was exercised by the Central Government. It was brought on record that application for review of the sale gift was made by the donor himself who could not have been deemed to have acted on behalf of the Central Government. Similarly nothing was also brought on record to even suggest that the Deputy Commissioner who reviewed the mutation of gift, be had no jurisdiction to review the mutation in his capacity as Deputy Commissioner. The appellant nowhere pleaded that gift of occupancy rights was in fact never made by Ladha in favour of the respondent Allah Bakhsh. This being so, the learned Civil Judge was quite justified to hold that the gift was made properly."
4. ' Additionally, the learned District Judge was of the view that there was no evidence produced to support the plea of fraud and misrepresentation in respect of the gift transaction and that the payment of consideration of Rs, 30,000 for the sale of the land in favour of the appellant was not proved.
5. ' The appellant then challenged the judgment of the first appellate Court in a second appeal before the Lahore High Court where a new argument was advanced. It was contended that the gift in favour of the respondent was void as it was in contravention of the Central Government's Notification, S. R.
0. No, 143, dated 1-4-1959, issued in exercise of power conferred by section 19 of the Pakistan (Administration of Evacuee Property) Act, 1957, the relevant portion whereof, on which reliance is placed reads as under :- "In exercise of the powers conferred by section 19 of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957), the Central Government is pleased to declare that, for a period of one year beginning on the 1st day of April, 1959. In areas in which the said Act is in force, no transfer of property or creation of any right in immovable property shall take place as follows, namely :-
(1) Transfer of any agricultural evacuee property by sale, exchange, or otherwise agreement relating to which is entered into on or after the twenty-sixth day of July, 1949, or if the agreement was entered into before the said date, in respect of which-
(a) in the case of transfer by sale, full consideration was not paid before that date ; and
(b) in the case of transfer by exchange, the property given in exchange in India or in any area occupied by India was not or has not been treated as evacuee property ; "
6. ' 'The learned Single Judge of the High Court who disposed of the appeal, however, found no substance in this contention as, according to his interpretation of the aforesaid relevant portion of the notification, the prohibition contained therein against transfer or creation of any rights in agricultural evacuee property was, on the language of the notification, not attracted in respect of gift but only extended to transfer for consideration. Learned Judge also agreed with the view taken by the subordinate Courts that the gift transaction by the original occupancy tenant L adha was not rendered void by virtue of section 56 of the Punjab Tenancy Act and continued to be valid for all intents and purposes until avoided by the landlord, but in this case the Custodian, who stepped into the shoes of the evacuee landlord had never objected to the gift made by the occupancy tenant. The second appeal of the appellant was accordingly dismissed by the learned Judge in the High Court, by his impugned judgment in this appeal, dated 6-7-1976.
7. Leave was granted firstly to reconsider the legal effect of the notification, dated 1-44959 issued under section 19 of the Pakistan (Administration of Evacuee Property) Act, 1957 as the prior permission was not obtained from the Custodian of Evacuee Property. The second question for consideration was whether the learned Judge in the High Court correctly interpreted the aforesaid notification to confine the prohibition contained therein to transfers with consideration and thereby excluded its application to gifts because a gift transaction is made without consideration. In this regard reference was particularly made to the word "otherwise" occurring in paragraph (1) of the notification.
8. ' Now as no argument was urged before us challenging the finding concurrently reached by the trial Court, First Appellate Court and the High Court, to the effect that the plea of fraud and misrepresentation in regard to the gift made by Ladha in favour of the respondent, was not substantiated, the controversy in this appeal has remained confined to the validity or otherwise of the gift on the legal plane. The main objection in this regard is, as debated before the High Court and the Courts below, that the gift transaction was incapable of producing legal effect of transference of rights possessed by the donor in favour of donee by virtue of the prohibition contained in section 56 of the Punjab Tenancy Act, which inter alia provides that the right of occupancy shall not, "without the previous consent in writing of the landlord, be transferred by private contract." From the reading of the section alongwith section 60 of the Punjab Tenancy Act, it appears that the prohibition contained therein is not an absolute one so as to render a transfer in violation thereof void and ineffectual in law ab initio. The latter section provides that such a transfer c without the previous consent of the landlord "shall be voidable at the instance of the landlord".
9. Therefore, the law clearly vests the right of avoidance of such transfer in the landlord ; and no other person, muchless a party to the transaction, will be entitled to avail the benefit of section 60 or invoke the restrictions laid down in section 56. The provision was clearly enacted for the benefit of the landlord and if he chooses not to challenge the transfer, it cannot be urged by any third party that there is an inherent legal infirmity in the transfer for want of consent of the landlord. There is a distinction between transactions which are "void" and "voidable", as pointed out by this Court in Chairman, District Screening Committee v. Sharif Ahmed Hashmi (1). In this connection it was observed : "The expression 'void' in the strict or accurate sense means `absolutely null' that is to say incapable of ratification or confirmation and of no effect whatsoever. The word 'voidable' on the other hand is something which could be .Avoided or confirmed and which is not absolutely void. In other words what is voidable has some force or effect, but which may be set aside or annulled for some error or inherent vice or defect. Thus, that which is voidable operates to accomplish the thing sought to be accomplished until the fatal vice in the transaction has been judicially ascertained and declared."
10. ' There are other provisions of law in which transactions have been recognised to be voidable at the instance of particular persons so that such transactions are voidable and not absolutely null and void. For instance, section 19 of the Contract Act provides that "when consent to an agreement is caused by coercion, fraud, or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused." If the option to avoid the contract is not availed of by such party, the contract subsists and remains binding on the other party to the contract with all the legal consequences flowing therefrom. Section 56 read alongwith section 60 of the Punjab Tenancy Act also does not appear to provide any absolute prohibition against transfer by the occupancy tenant without the consent of his landlord, so as to render the transaction 'non est.
11. Since such transaction is voidable at the instance of the landlord, until the landlord seeks to void it, the transaction would be binding on the parties thereto.
12. ' In the present case the original Hindu landlord having become evacuee, his rights vested in the Custodian and admittedly the Custodian did not object to or otherwise avoid the transaction of gift by Ladha in favour of the respondent. In the circumstances the gift being effective, Ladha was not possessed of any right and could convey none by means of the subsequent sale in favour of the appellant. The revenue authorities' action in setting aside the Mutation No, 1010 was, therefore, patently illegal and uncalled for. It follows from this that the appellant can claim no right on the basis of the sale-deed, dated 6-6-1970.
13. ' The only other contention pressed in support of this appeal is based on the Central Government Notification under section 19 of the Pakistan (Administration of Evacuee Property) Act, 1957. Learned counsel for the respondent submitted that this question was not raised before the trial Court or the first appellate Court, but was urged for the first time in the second appeal in the High Court and, therefore, the appellant is not entitled to set up a new case at this stage. The argument for the appellant was that there being a total embargo on the transfer of evacuee agricultural land for the relevant period, the gift transaction was wholly null and void, consequently this is purely a legal objection. {{FOOT NOTE}} (1)PLD 1976 SC 258 {{FOOT NOTE}} ' We, however, find substance in the objection raised on behalf of the respondent. The appellant's case in the suit filed by him was that the gift made by Ladha in favour of the respondent was void as no prior consent of the landlord i,e, the Government was obtained. There was no plea set up in the plaint to the effect that the transfer of the property by means of gift was bad in law on account of prohibition contained in the Notifica don. The respondent, therefore, had no opportunity to meet this objection during the trial and for that matter at any stage, since this objection was raised only before the High Court in the second appeal which was dismissed in limine. It is now well-settled that as an appeal is a continuation of the proceedings initiated by the suit, the appellant cannot in the memorandum of appeal raise a new case requiring fresh investigation or raise an objection which had it been raised earlier could have been met. We do not consider that the objection presently raised is a pure question of law. The perusal of the relevant portion of the notification relied upon clearly shows that the legal embargo relates to transfer consequent upon agreement entered into on or after 26th July, 1949. Therefore, there is a factual element involved in the application of the Notification. The appellant is accordingly not entitled to raise this objection at the present stage. Consequently, we find it unnecessary to go into this question.
14. ' For the foregoing reasons, this appeal has no merit and is accordingly dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.