MIAN BURHANUDDIN KHAN, J.--Alam Din, maternal-grandfather of the appellants, by a registered deed, dated 27th January, 1960, gifted about 55 Kanals of land with a Katcha House in village Kotla, to the appellants but the local Tehsildar refused to sanction the gift mutation on the ground that gifts were barred under paragraphs 25 of Martial Law Regulation No. 64. Alam Din died shortly thereafter and the respondents who are his nephews, are stated to have forcibly evicted the appellants from the land gifted to them by Alam Din.
2. To enforce their rights the appellants filed a suit in 1961 for possession of the land in question, against the respondents in the Court of Civil Judge, IV Class, Rawalpindi. The suit was contested by the respondents who relied on paragraph 25 of M.L.R.64(A) as it was common ground between the parties that the holding of Alam Din was less than the subsistence holding within the meaning of the aforesaid Regulation. However, the learned trial Judge held that there was nothing in the said Regulation which prohibited a gift of house but as regards the claim of the appellants to the land, he held that the appellants were the owners of land within the meaning of the proviso to sub- paragraph (4) of paragraph 25 of the aforementioned Regulation (hereinafter called the said proviso). The learned Judge held that this proviso only permitted alienation by way of sale and not by way of gift. Therefore he held that as the gift-deed, dated the 27th January, 1960, executed by Alam Din in favour of the appellants, was a gift deed simpliciter, he rejected the claim of the appellants for the land in dispute and decreed the suit only for the house.
3. Aggrieved by the judgment of the learned trial Court both the parties filed appeal before the learned District Judge, Rawalpindi who dismissed the appeal of the respondents but allowed the appeal of the appellants. The learned Judge pointed out that a gift did not fall within the proviso of sub-paragraph (4) of paragraph 25 of M.L.R.64(A) and held that the gift in the instant case, was not a gift simpliciter but a Hiba-bil-Ewaz, and according to the learned Judge, such a gift was a gift for a consideration and was in reality a sale and, hence, it was saved by the said proviso. Accordingly the learned District Judge allowed the appeal.
4. Respondents filed second appeal in the Lahore High Court against the judgment of the District Judge which was allowed on 28-5-1974. The learned High Court Judge rejected the contention of the appellants that a Hiba-bil-Ewaz fell within the said proviso on the basis of a judgment reported in Ewaz Muhammad v. Ghafoor Khan and another AIR 1934 Oudh 27. The learned Judge, however, agreed with the view that the gift of the house by Alam Din was valid and, therefore, he allowed the appeal of the respondent only to the extent of the agricultural land, transferred to the appellants by Alam Din vide deed, dated the 27th January, 1960. Aggrieved by this judgment, the appellants filed petition for leave to appeal which was granted by this Court vide order dated the 27th October, 1978 on the ground that Hiba-bil-Ewaz of the type made in the instant case would amount to a sale within the meaning of the aforesaid proviso which reads as follows: "(4) No person owning an area equal to or less than a subsistence holding, shall be allowed to alienate by sale, mortgage, gift or otherwise, any part of his holding: Provided that such a person may alienate his entire holding, or, in the case of holding which is less than a subsistence holding, sell any part of his holding to another owner of the same village, Deh or Mauza."
5. The learned counsel contended that the appellants are presumptive heirs of the donor Alam Din who had gifted the disputed land to the petitioners by gift-deed, dated the 27th January, 1960 where entire holding was less than subsistence holding and no doubt that clauses 4 and 5 of paragraph 25 of the aforesaid Regulation generally provided that 'No person owning an area equal to or less than subsistence holding, shall be allowed to alienate by sale, mortgage, gift or otherwise, any part of his holding by alienation, made in contravention of the provision of this paragraph shall be void'; that the Martial Law Regulation 64 is a special piece of Legislation in the sense that clause 5 of paragraph 4 of the Regulation, delegates to the Land Commissioner the power to fill up the lacuna and remove difficulties which may arise in giving effect to the Regulation. Clause 5 of para.4 of the Regulation reads as follows: - "Where any matter is not provided for in this Regulation, or any difficulty arises in giving effect to the purposes of this Regulation, Commission may, by order notified in the Official Gazette, make such provision in respect thereof as it thinks fit, and such order shall be deemed to for part of this Regulation and have effect accordingly."
6. Learned counsel further argued that the learned High Court Judge has erroneously held that the said Notification cannot be taken benefit of by the appellants for the reasons that the gift in question was made in favour of the appellants on the 27th January, 1960 while the Notification is dated 27th January, 1962. In this context he submitted that the amendment in paragraph 25 of the Regulation had no retrospective effect. He further argued that the powers of the Land Commissioner under paragraph 4 of the Regulation are not that of a subordinate legislation like a rule-making authority etc. But the powers are of the nature of delegated powers because the Commissioner is empowered to make change in the present law itself and such changes shall be deemed to form part of the Regulation and for that reason the Commissioner is authorised under clause 5 of paragraph 4 to make provision where any matter is not provided for or any difficulty arises in giving effect to the purposes of the Regulation, and such changes shall be deemed to form part of the Regulation, and have effect accordingly. Therefore, the learned counsel submitted that the provision to be 'made by the Commissioner shall be deemed to form .Part of the Regulation as it originally was; secondly the phrase "and have effect accordingly" used in a comprehensive way so as to include the point of the as well the provisions made by the Commissioner shall have effect from the date when the Martial Law Regulation came into force.
Reliance was placed on PLD 1966 Pesh,. 11 wherein words "shall be deemed to form part of the Regulation and have effect accordingly" were held to have retrospective effect.
7. On going through the record we find that the learned trial Judge, on the pleadings of the parties, framed the following issues: (1)Had Alam Din deceased, the donor, completed the gift and delivered possession to the plaintiffs?
(2)Was the suit property ancestral as regards the donor and the defendants?
(3)Was the donor governed by customary law? If so, what, was the custom?
(4)What is the effect of M.L.R.64? And held under issue (3) that the donor and the parties to the suit belong to Awan tribe of Rawalpindi Tehsil and being members of an agricultural tribe they are governed by custom. But under their customary law, a sonless person can gift away the ancestal property without any restriction. The defendants have not been able to prove any custom to the contrary. Under issue No .l the learned trial Judge held that the gift in favour of the plaintiffs/ appellants has been completed both in respect of the house as well as the land. Under issue No.4 it was held that under M.L.R.64, as amended by M.L.R.64-A, sub-para. (4) of paragraph 25 applied to this case. The amended provision will read thus: "No person owing an area equal to or less than a subsistence holding, shall be allowed to alienate by sale, mortgage, gift or otherwise any part of his holding provided that he may alienate his entire holding, or in case of a holding which is less than subsistence holding, sell any part of his holding to other owners of the same village, Deh or Mauza".
Therefore, a valid transfer to the plaintiffs could be made under the provisions of M.L.R. 64-A but it is unfortunate for the plaintiffs that in the amendment (M.L.R. 64-A) the word is "sell" instead of "alienate" and it would have been different situation if Alam Din deceased had sold the land in favour of the appellants as it was only a portion of his holding that could be alienated by sale."
8. In the grounds of appeal before the District Judge, the learned counsel had not taken any plea regarding the transaction being a "sale" or "Hiba-bil-ewaz." All he submitted in ground (2) of appeal is the gift is included in alienations which are permitted" and in ground (3) "purpose of M.L.R. 64 is only to restrict alienation in certain respects and wherever alienations are permitted, then all forms of alienations are permitted". Nowhere it was mentioned that the transaction in question was a sale. In this judgment the learned District Judge, while considering the contentions of the learned counsel observed as follows:- 'In the present case Alam Din's entire holding was admittedly less than a subsistence holding and it is again common ground that he did not dispose of his entire holding by way of gift to the plaintiffs.
It was in the mutation itself that he had still five to six Ghumaons of land with him after having made the gift in question. Admitting that the gift was not of the entire holding, it is contended on the donees' behalf that they being the presumptive heirs of their grandfather, were competent to receive from him a gift of a part of his holding and that it was open to him to make such a gift. In this connection reliance has been placed, on their behalf, on a Notification No.ASR.468/623939-LC issued by the West Pakistan Land Commission on 16th July, 1962. Its text is as under: ' In the exercise of powers conferred by clause (5) of paragraph 4 of the Martial Law Regulation No.64, deemed to have become an Act of the Central Legislature in pursuance of clause (3) of Article 225 of the Constitution of the West Pakistan Land Commission is pleased to direct that a land owner, having less than the area of subsistence holding, may
(i) alienate, by way of gift, the whole or part of his holding to any of his presumptive heirs and
(ii) exchange the whole or any part of his holding with the area held by other landowners in the same village, Deh or Mauza.
Now the donor's daughter's are clearly presumptive heirs and the Notification' which explains the true nature of the Martial Law Regulation, in its application, certainly upholds a gift in their favour."
Dealing with the matter, the learned District Judge further observed: "According to the recitals of the documents (Exh.P.1) the alienation was in lieu of services. It is true that it was given the name of gift and the alienor described himself as donor. All the same, this was a gift for consideration that is 'Hiba-bil-ewaz' of the Muslim jurisprudence. Now "Hiba-bil-ewaz", according to the Muslim Law is in fact, a sale. The following paragraph of Mullah's Muhammadan Law is relevant for the purpose of this case a Hiba-bil-ewaz, as distinguished from an Hiba or simple gift, is a gift for a consideration, it is in reality, a sale and has all the incidents of a contract of sale That being the position, the transaction was clearly a sale and was permitted under the Martial Law Regulation, independent of the Notification cited. It is common ground that the plaintiffs were already among the proprietors of the village, and were under the Martial Law Regulation, entitled to receive land by sale from another proprietor"
9. The learned High Court Judge while dealing with the same question observed in his judgment as follows: "I have gone through the gift deed executed by Alam Din but I am unable to accept the contention that the alienation he made was in the nature of Hiba-bil-ewaz. Before a gift can be described as a Hiba-bil-ewaz, to conditions must be present which are, first, there should be actual payment of consideration on the part of the donee, its adequacy or inadequacy being irrelevant, and second, there should be a manifestation of a bona fide intention on the part of the donor to divest himself immediately of the property and to confer it upon the donor. It is important that the consideration must be real and should actually pass from the donee to the donor. In the present case Alam Din gave the following as the reason for making the gift: Now these can be hardly called as consideration for the purpose of converting a simple Hiba into a Hiba-bil-ewaz. In this context I would also refer to Ewaz Muhammad v. Ghafoor Khan 147 I C 867, in which the Court refused to treat a gift as Hiba-bil-ewaz, where the sole consideration which weighed with the donor was (haq-e-Khidmat guzaari). It must, therefore, reject the assertion of the respondents that the agricultural land had been given to them by way of Hiba-bil-ewaz."
10. For the first the in the High Court the learned counsel referred to Notification, dated 16-7-1962 which was repelled by the learned High Court Judge in the impugned judgment, as follows: "It is an accepted rule of interpretation that in the absence of anything contained in a statutory enactment, either express or implied, it must be presumed to have future effect only. This rule also applies to subordinate legislation with the possible additional qualification that the power to give retrospective effect to such type of legislation must be discoverable from the present statute, clause 5 of the paragraph 4 of Martial Law Regulation No.64 under which the Notification in question, was issued read as follows: 'Where any matter is not provided for in this Regulation or any difficulty arises in giving effect to the purposes of this Regulation, the Commission may, by order, notified in official Gazette, make. Such provisions in respect thereof as it think fit, and such order shall be deemed to form part of this Regulation and have effect accordingly.'
Although by virtue of this clause the Notification in question is to be deemed to form part of the Martial Law Regulation No.64 but it does not necessarily mean or imply that it will be deemed to have formed part of the Regulation with effect from the date when the Regulation itself was issued.
To hold so there must have been some. Words to the effect in the Notification itself. In the absence of a clear statement in the Notification itself that it was to take effect from the date of the issuance of the Regulation the ordinary presumption would be that it became part of the Regulation on the date when it was issued. I am, therefore, unable to accept the contention that the Notification had the effect of validating the gifts which had already been made before its issuance in violation of clause 4 of paragraph 25 ibid"
11. Dealing with the first point whether in the instant case the gift deed can be termed as Hiba-bil- ewaz we are in agreement with the finding of the learned High Court Judge that Hiba-bil-ewaz is distinguishable from a simple gift as the former is a gift for consideration. It is in reality, a sale and has all the incidents of a contract of sale. Two conditions, however, must concur to make the transaction valid namely (1) actual payment of consideration (Iwaz) on the part of the A donee, and (2) a bona fide intention on the part of the donor to divest himself in praesenti of the property and to confer it upon the donee. The adequacy of consideration is not material, but whatever its amount, it must be actually and bona fide paid. Such a transaction is called the Hiba-bil-ewaz.
12. As regards the other point raised by the learned counsel it would suffice to say that the effect of the Notification, dated i16-7-1962 in the present case need not be examined; all that is required to be examined now is whether the appellants can be called 'presumptive heirs'. According to Hanafi Law of Inheritance there are three classes of heirs namely (1) Sharers, (2) Residuaries and (3)
Distant Kindred. As the appellants do not .Come in any of these classes, therefore, they cannot be called 'presumptive heirs'. The first step in the distribution of the estate of a deceased Muhammadan, after payment of his funeral expenses etc. Is to allot their respective shares to such of the relations as belong to the class of sharers and are entitled to a share. The next step is to divide the residue, if any, among such of the residuaries as are entitled to the residue. If there are no sharers, the residuaries will succeed to the whole inheritance. If there be neither sharers nor residuaries, the inheritance will be divided among such of the distant kindred as are entitled to succeed thereto. The distant kindred are not entitled to succeed so long as there is any heir belonging to the class of sharers or residuaries. The daughter of Alam Din predeceased him and the appellants being his grand-daughters, would not fall in any of the aforesaid categories. For this reason alone, therefore, provisions of the Notification, mentioned above, would not be attracted to the present case. This appeal fails and the same is, consequently,) dismissed with costs.