1. ' SAJJAD ALI SHAH, J-This Constitutional Petition calls in question impugned order, date 20-12-1976 passed by O S D/Joint Secret ary as Member Fedearl Land Commission, whereby he has exercised so motu revisional jurisdiction as contemplated in paragraph 29 of ' Martial Law Regulation No,115, on the report of Inspection 'Team of the Federal Land Commission. By the impugned order he has set aside the order of the Land Commissioner validating the alienation of gift in favour of donees by the petitioner and further directed that such alienation should be treated as non-existent and void for the purpose Of land reforms. Furthermore, Deputy Land Commissioner is directed by the impugned order to redetermine the holding of the petitioner and to resume the excess area and distribute the same among the deserving tenants.
2. ' Briefly stated the relevant facts giving rise to this petitioner are that Arz Muhammad father of the petitioner Rasool Bux died leaving behind agricultural land which was inherited jointly by petitioner Rasool Bux and his father Muhammad Bux. Subsequently Muhammad Bux also died and his share was inherited by his daughter Mst. Saleh, his wife Mst. Bambo and his brother Rasool Bux.
3. Agricultural lands left behind by father of the petitioner were situated in Deh Larh in Taluka Tando Allahyar and in Deh Kabaho and also in Deh Agamano in Taluka Matli. Now so far the land situated in Deh Larh is concerned, total area left by the father of the petitioner was about 172 plus 550 Acres which comes to 722 Acres. It was inherited by petitioner Rasool BuX and his brother Muhammad Bux so the equal shares were 361 Acres each.,From the share of Muhammad Bux, who died, 8 annas went tO Mst. Saleh, 2 annas went to Mst. Bambo daughter and wife of Muhammad Bux respectively and 6 annas to Rasool Bux petitioner. In this land belonging to Muhammad Bux share of petitioner Rasool Bux, which is 6 annas equal to 37 paisas area-wise comes to 135-136 Acres. When this share is added to the original share of Rasool Bux then area-wise total agricultural land owned by him comes to 497 Acres from which 361 Acres belong to him plus 135 Acres which he inherited from the share of Muhammad Bux. Rasool Bux petitioner and heirs of Muhamamd Bux mentioned above arrived at settlement among themselves in respect of the whole agricultural land inherited by them and in the light of such settlement with full consensus both ladies got one rupee share in Deh Larh in 172 Acres, in Deh Kabaho they got 7 Acres and 6 Ghuntas (full one rupee) and in Deh Agamano they got 111-13 Acres (full one rupee). In Deh Agamano Rasool Bux got 29-30 Ghuntas (full one rupee). So far Deh Larh is concerned, Rasool Bux got 539 Acres (full one rupee). In this area of 539 Acres there is absolutely no joint holding and this land belongs exclusively to Rasool Bux.
4. Additionally in Deh Larh Rasool Bux has in Block No,44/124 18 paisas and in Blocks Nos.508 and 509 he has 82 paisas, with co-sharers who are not ladies mentioned above but are some other persons who are unascertainable for the reason that their names do not appear in the records of rights.
5. ' Record further shows that while on 28-6-1971 petitioner and ladies namely Mst. Saleh and Mst.
6. Bambo made settlement which has been entered in the record of rights partitioning the property as described above. On the same day from his own share of agricultural land in Deh Larh, petitioner Rasool Bux gifted away 75 paisas to his three sons Muhammad Ramzan, Saindad and Ghulam Ali. Petitioner further gifted 13 paisas from his share of 18 paisas in the joint holding in Block No,444/I to 4 to his three sons and the gifted area comes to about one acre. Petitioner also from the joint holding in Block Nos.508-509 gifted away 611 paisas to his sons from his share of 82 paisas and the area so gifted comes to 6 Acres and some Ghuntas.
7. ' Mr. Jhamat Jethanand., Advocate for the petitioner has assailed the impugned order on two grounds. Firstly that the learned Member of Federal Land Commission has erred in his finding that the petitioner could not give the land to his three sons for the reason that it was a joint holding in which petitioner was co-sharer and this could not be done without partitioning the joinikKhatas as gift of share in undivided property capable of division is not permissible. Learned counsel in this context has submitted before us that this finding has been arrived at by the learned Member in the impugned order on the basis of doctrine of Mushaa as enunciated in the book of principles of Muhammadan Law authored by Mulla. Paragraph 160 thereof envisages that a gift of an undivided share in property which is capable of division is irregular but not void. It is further stated therein that such gift being irregular, and not void, may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. If possession is once taken the gift is validated. Then there are exceptions provided in which Mushaa will not apply. Exception (I) is where the gift is made by.One co-heir to another and exception (2) is where the gift is of a share in a Zamindari or Taluka. Learned counsel for the petitioner relies upon both these exceptions and has contended before us that in the instant case the land in question was a share in Zamindari and also that gift was made by one co-heir to another. According to the learned counsel petitioner is also co-heir in the sense that he has inherited the property and further that if one of the donees dies. Petitioner also becomes co-heir by virtue of Muslim inheritance. In support of the contention learned counsel has relied upon the case of Bahadur v. Jan Muhammad PLD 1960 Kar. 745 in which it is held at page 752 that doctrine of Mushaa is not applicable where the gift is of a share in Zamindari or taluka.
8. ' In this context the learned counsel has further submitted that on 28-6-1971 first the settlement took place between Rasool Bux petitioner and ladies heirs of deceased Muhammad Bux in consequence of which property was partitioned and subsequently from his own share Rasool Bux gifted away portions as mentioned above to his sons. Further, that such gift was made from the share of land of petitioner situated in Deh Larh which belong to him exclusively and fraction of which was joint holding from which also gift was made but that is fully covered for the reason that doctrine of Mushaa will not apply in the instant case as stated above. To this extent we accept the contention of th learned counsel.
9. ' Another contention raised by the learned counsel is that he assails the impugned order on the ground that observation made in the impugned order is vague and it does not specifically and clearly describe as to what is that portion of the gifted land which was on restricted tenure which could not be validly gifted without obtaining required permission. We also find that in the impugned order no particulars are given for describing that portion, which has been found to be on restricted tenure. Mr. Jhamat Jethanand has submitted in this context that this observation is vague in nature and is not specific at all. Further, he is not in a position to ascertain under what provisions of law this objection is taken. He has submitted some documents in this regard but we would not like to consider them for the reason that first the observation is very vague in nature and the portion of the land which is stated to be on restricted tenure is not pin-pointed and further provision of law is also not quoted under which this objection is taken as such the same should be done first and then the petitioner can produce the documents to explain the same.
10. For the facts and reasons mentioned above, we set aside the impugned order and remand the case to the Federal land Commission for the purpose of fresh and definite finding on the point of restricted tenure only in the light of what is stated above after giving proper opportunity of hearing to the parties concerned. In the result the petition is allowed with no order as to costs.