JUDGIMENT ' ABDUL SHAKURUL SALAM, J.-Za ka Ullah petitioner No, 1 got as a gift 1,200 kanals of land from his father Mallah in the year 1960. On 17th July, 1969, he gifted 763 kanals 2 mar las to his two minor sisters petitioners Nos. 2 and 3 through Mutation No, 20 sanctioned, on 17th July, 1969. On 23rd December, 1972, the Land Comission, Lahore held that the gift to the sisters was not valid becau se they were not deprived of their inheritance as the father of the donor and donees was alive. The brother and the sisters filed a revision petition before the Chief Land Commissioner, which too was dismissed for the same reason, on 6th December, 1973 holding provision of para. 7(1) (b) of the Martial Law Regulation 115 permitted gifts to sisters if they had been deprived of their inheritance.
Also that the brother, petitioner No, 1, had gifted part of the land measuring 186 kanals 4 marks which was not the one he had received in gift from his father but this had been purchased by him.
Petitioners then filed another revision petition before the Federal Land Commission which was dismissed on the ground that Explanation 1 to para. 7(1) (b) did not apply where inheritance had not opened, vide order, dated 7th February, 1974. Hence, this petition.
2. Learned counsel for the petitioners read out the relevant provisions which are to the following effect :- "Provided that any transfer of land or creation of any right or interest in or encumbrance on any land by way of gift by a person to whom this clause applies shall, subject to the next succeeding proviso, in no case be held by the Commission to be a bona fide transaction : Provided further that nothing in this clause shall apply to-
(1) any transfer of land or creation of any right or interest in or encumbrance on any land by way of gift or otherwise made by a person in favour of his heirs or
(ii) any transfer of land or right or interest therein, by way of gift made by a person in favour of his widowed or unmarried sister, who has not received her due share of inheritance of ancestral land ; or..........
' Explanation 1.-For the purposes of this sub-paragraph and paragraph 10, an heir shall mean the owner's wife or wives, sons, daughters, father, mother and sons and daughters of a deceased son or daughter."
' The gift to the unmarried sisters it is stated has not been allowed on the ground that they were not those who had not received their due share of inheritance of the ancestral land, because their father was still alive and question of their inheriting ancestral land did not arise. So sub-clause (ii) of the proviso above quoted, did not apply to the case. Learned counsel candidly referred to Syed Muhammad Ahmad Shah & Co. v. Additional Chief Land Commissioner, Punjab, Lahore (1) and Mst.
Daulat Khatoon v. Member, Federal Land Commission, Rawalpindi and 2 others (2) and stated that in view of the above he cannot contend to the contrary. However, he raised two other points. The first being that under sub-clause (1) to the proviso, above-quoted, gift to an heir is valid and the two sisters are heirs and the fact that in the Explanation No, 1 above-quoted which says that "an heir shall mean the owner's wife or wives, sons, daughters, etc." and does not include sisters, is not decisive because the purpose of Explanation is to explain the main provision and not to take away which will otherwise be available to a person under the main provision. He referred to PLD 1952 P C 155, PLD 1968 Lah. 202, PLD 1969 Lab. 228, PLD 1960 SC 202 and PLD 1977 Lah.
292. He further submitted that the Explanation will not affect the personal law and since under the personal law of parties a sister is an heir, therefore, gift to her will be saved by sub-clause (1) of the proviso above quoted. His second contention has been that the gift to the sisters at the worst was void only for the purposes of the aforesaid Regulation otherwise it will be valid and effective, as is held in PLD 1975 Lah.
408. Therefore, the gifted land may be included in the entire holding of the declarant petitioner No, 1 from which he may be required to surrender whatever is prescribed to the extent of his liability according to his choice as permissible. But the gift to the sisters shall remain intact and valid.
3. Learned counsel appearing for the respondent-authorities and the learned Assistant Advocate- General submitted that an 'heir' to whom gift is allowed in the sub-clause (1) above quoted, is expressly stated in the Explanation No, 1 to 'mean' the persons mentioned therein and sisters are not included. Therefore, express provision will exclude sisters who may otherwise be heirs. As regards the second contention of the learned counsel for the petitioners, they state that is quite correct in view of the reported judgment of the learned Division Bench PLD 1975 Lah.
408. Consequently, the gift in favour of the sisters would be valid and effective, except for the purposes of the aforesaid Regulation-the result being that the declarant petitioner No, 1., holding will include the gifted land to the sisters and whatever he is thus liable to surrender, he will have to do that. It is further stated that in order to avoid unnecessary dislocation, the land which he had already surrendered and has been disposed of by the authorities, would remain, and so also the land gifted or otherwise disposed of from his holding. He will make up the deficiency if any in the required surrender of land from his remaining, holding, of course, according to his choice.
(1) 1974 SC MR 409 (2) PLD 1975 Lah. 59
4. We have heard the learned counsel for the parties at length. Taking up the second contention first, in view of there being no dispute and matter concluded by a judgment of learned Division Bench of the High Court PLD 1975 Lah. 408, the gift in favour of the sisters shall remain valid and effective, except for the purposes of the aforementioned Regulation. Consequently, the holding of the declarant petitioner No, 1 shall be as it was before the gift and he will be liable to surrender land to the extent that he was required to do so under the Regulation. This he will do, of course, according to this choice from the land available with him or if he has disposed of all then from the holding as it existed at the relevant time.
5. As regards the first contention that Explanation I, notwithstanding the non-inclusion of sisters, will not detract from sub-clause (1) of the proviso which allows gift to an 'heir', the same is without force in the circumstances of the case because it presupposes that a sister or sisters are heirs under the personal law of the parties but that is not always so, as that is dependent upon so many contingencies. A sister becomes an heir as a 'sharer' when there is "no (1) child, (2) child of a son howlowsoever, (3) father or (4) true grandfather," per table of sharers and as a `residuary' B after (1) son, (2) son's son how low soever, (3) father, (4) true grandfather, and with full brother, per table of residuaries-under the Sunni Law, as given in Mulla's Mahammadan Law, which is presumed to be applicable. There is nothing on the record to show that none of the aforesaid existed not to exclude the sister or sisters as heir. Moreover, the question of her or thei being heirs could only arise on the opening of inheritance and the donor, petitioner No, I, is Masha Allah still alive. Therefore, the contention calls for no further consideration.
6. In view of what has been stated in the penultimate paragraph, the petition is partly allowed to the extent that the gift to the sisters will be valid and effective but the holding of the declarant, petitioner No, 1, will be calculated including the gifted land for the purposes of the Regulation and action taken in accordance with law. In the circumstances, the parties shall bear their own costs.