' NASIR ASLAM Z AHID, J.-The petitioner No, 1 is the declarant under Land Reforms Regulation, 1972 (M.
L. R. 115), petitioner No, 2 is the mother of petitioner No, and petitioner No, 3 is his wife. Certain alienations were made by petitioner No, 1 in favour of petitioners No, 2 and 3 by way of gifts and through exchange. These transactions were made in 1970 and consequently the records of rights were mutated accordingly. Certain other alienations had also been made by petitioner No, 1 in favour of other persons who were not the legal heirs of petitioner No,
1. By his order, dated 21-6-1972 under paragraph 7 of M. L. R. 115 the Land Commissioner Sind declared the alienations made by way of gifts and through exchange in favour of petitioners No, 2 and 3 to be valid and in order.
However, the gifts made to the persons who were not his legal heirs were declared to be void. An alienation by way of sale was confirmed. By way of suo mom revision the matter was re-opened by the Additional Chief Land Commissioner Sind and by his order, dated 9-8-1975, he declared the transfers by way of exchange to be void on the ground that the exchanges were inequitable and the same were made with the motive to save the land from being resumed under the Land Reforms. The exchanges were termed to be not bona fide and were declared as void. As regards the gifts in favour of petitioners Nos. 2 and 3 (mother and wife) the Additional Chief Land Commissioner held that under the law such gifts required registration and as the gifts were not made through registered instruments, the same were declared to be void. A revision was, filed by the petitioner No, 1 before the Federal Land Commission impugning the order, dated 9-8-1975 of the Additional Chief Land Commissioner. By his order, sated 20-10-1976, the Officer on Special Duty, Federal Land Commission, dismissed the revision. The present constitutional petition has been filed challenging the order, dated 9-8-1975 of the Additional Chief Land Commissioner and the order, dated 20-10-1976 of the Federal Land Commission. We have heard Mr. Imam Ali G. Kazi. Learned counsel for the petitioners and Mr. Sayeed A. Shaikh, learned Advocate-General Sind on behalf of respondents Nos. 2 to 4.
2. It was argued by the learned counsel for the petitioners that for the purposes of Land Reforms Regulation, 1972 it was not necessary that a gift made by a Hindu should be made through a registered instrument and if by other evidence it was established that a gift had been made, such a gift transaction could be validated under paragraph 7 of M. L. R.
115. Learned counsel in this connection relied upon cases of Sachunand v.
O.S.D., Federal Land Comnission (1) and Nanik Rain v. O. S. D., Federal Land Commission (2). In both the cases decided by the Division Benches of this Court, it has been held that mere non- registration of a gift deed will not make the gift transfer void for the purposes of Land Reforms Regulation, 1972. Mr. Sayeed A. Shaikh, learned Advocate-General Sind very frankly conceded that this is the A view of our Court. We are also of the view that for the purposes of Land Reforms Regulation, 1972 the gifts made by a Hindu are not to be treated as void solely for the reason that the gifts were not made through a registered
(1) PLD 1981 Kar. 393 (2) 1982 CLC 1947 ' gift deed and the gift transaction can also be established/proved on the basis of other evidence.
3. The other question that requires consideration in this petition is whether the exchange transaction between petitioner No, 1 and his wife and mother could be declared to be void on the basis that it was not bona fide. The law in this context has been clearly enunciated and that is that if the factum of an alienation by a declarant under M. L. R. 115 in favour of his legal heirs is establised, the bona fides of that transaction cannot be gone into. Reference may be made to two reported judgments of this Court. The first is the case of Ghulam Nabi Shah v. O.S.D. Federal Land Commission (1) and other is the case of Nanik Ram v. O.S.D. Federal Land Commission There is also a judgment from the Lahore High Court in the case of Hayat Muhammad v. Member, Federal Land Commission (2). These reported decisions have held that in view of proviso in para. 7 (1) (b) of M. L.
R. 115 the Land Commission authorities are entitled to go into the question as to whether there was a gift in favour of a legal heir but they cannot inquire into the bona fides of such gift. The case here is, however, not of a gift but of an exchange. Mr. Imam Ali G. Kazi, learned counsel for the petitioners points out that exchange is also a transfer of immovable property and reference in this regard is made to section 118 of the Transfer of Property Act. The contention of the learned counsel for the petitioners is correct. Under section 118 of the Transfer of Property Act an exchange relating to immovable property amounts to a transfer of immovable property. In the proviso to section 7 (1)
(b) of M. L. R. 115, it is provided that any transfer of land or creation of any right or interest in or encumbrances on any land, by way of gift or otherwise mide by a person in favour of his heir during the specified period cannot be held to be void on the ground that the transaction was not bona fide. The proviso refers not only to transaction of land by gift by a person in favour of his heirs but also uses the words "or otherwise" and as such transfers of lands by other modes that is by sale or through exchange are also covered by the proviso. Learned counsel for the petitioners had referred to the case of Abdul Ghafoor Khan v. Federal Land Commission (3) decided by Shafiur- Rehman, J. According to Shafiur-Rehman, J. The word "otherwise" employed in the proviso in the question is not be given a restricted meaning but on the contrary it has to be read as extending the modes by which such transfer could take place or right or interest could be created. That case related to sales by the declarant in favour of his minor children and the Federal Land Commission declared the sales to be invalid on the ground that they did not appear to be bona fide, as the consideration did not and could not have passed because the vendees were minor sons of the vendor and there was nothing on record to show that they had any independent means. The learned Single Judge came to the conclusion that the word "otherwise" in the proviso was not confined only to the transactions in the nature of gifts but also extended to other modes by which transfers of land could take place or right or interest in land could be created. We are of the same view as has been taken in PLD 1979 Lah. 375. In our view, also the word "otherwise" in the proviso in question embraces not only transactions in the nature of gifts but also any other transaction whereby right or interest in land is transferred or created. A transfer of land through exchange will also be covered by the word "otherwise".
4. In this case the Additional Chief Land Commissioner Sind declared the transaction by way of exchange to be void solely on the ground that the
(1) 1982 CLC 1472 (2) PLD 1974 Lah. 456
(3) PLD 1979 Lab. 375 ' ransactions were not bona fide. On the basis of the view that we have taken, the transaction of exchange being between the declarant and his wife and mother, the factum of exchange being not disputed, the transaction of exchange could not be declared as void on the ground that it was not bona fide.
5. Constitutional Petition No, D-174 of 1977 is allowed and the impugned orders, dated 9-8-1975 of the Additional Chief Land Commissioner and 20-10-1976 of the O.S.D., Federal Land Commission, are declared to have been passed without lawful authority and to be of no legal effect. There will be no order as to costs.