SHAH ZAMAN BABAR, J.---This is a writ petition by Mst. Eidun Nisa Begum, widow of late Sultan Raja Rukan Zaman Khan of Khanpur, Tehsil Haripur District Hazara. It is prayed that the order dated 4-8- 1966, of Member (Revenue), 3oard of Revenue, West Pakistan, be declared illegal and quashed.
The petition arises out of the following facts ; Sultan Raja Rukan Zaman Khan of Khanpur was an existing owner holding huge ancestral land in various villages, He, in his lifetime, submitted his Declarations Forms LC-I and LC-II under paragraph 15 of the West Pakistan Land Reforms Regula--petition No. 64 (hereinafter called the Regulation). In view of para. 9(f)and para 11 Raja Sahib proposed to transfer by gift his land in Form LC-11, dated 13-4-59 (Annexure A) in favour, of the petitioner, in the following manner: Name of . Village.
1.Marchabad.
4.349 acres.
2.Kotha.
22.743 acres.
3.Nikra.
19.013, acres.
4.Pind Gakhara.
1.831 7.416.
1.Makhnial.
282.480 acres.
2. Banth.
30.800 acres.
3. Desra.
127.318 acres.
The area proposed to be transferred to the petitioner in these: seven villages is in dispute. After necessary verification the declarant, Raja Sahib, was allowed to gift an area equal to 1225.999 acres to his wife Mst. Eidun Nisa, by order of the Deputy Land Commissioner, Hazara, dated 11-6- 1959, according to Schedule 1 (Appendix G) attached to the order.
Raja Sahib died on 25-9-1963. After the death of Raja Sahib, the following gift mutations were entered and attested on behalf of Raja Sahib in favour of Mst. Eidun Nisa.
Village.
Mutation.
Date of entry.
Date of attestation.
1. Marchabad.
535 22-6-64 16-6-64 34 K 4 M.
2. Kotha.
362 6-3-64 17-6-64 180 K.
3. Nikra.
319 6-3-64 16-6-64 113 K 5 M.
4. Pind Gakhara 1089 13-10-63 16-6-64
(i) 46 K 14 M.
(ii) 2/5th share out of 89 R 11 M.
5. Makdnia.
162 22-6-64 23-6-64
(i) 5/16 out of 7163 K 6 M.
(ii) 5/32 out of 15 K6 M.
(iii) 1/8 out of 41 K 8 M &
(iv) 5/48 out of 149 K7 M.
6. Banth.
215 22-6-64 23-6-64 394 K 16 M.
7. Desra.
119 20-6-64 23-6-64 5/160 share out of 3256 K 7 M.
8. Khanpur 3980 13-9-63 But notattested.
27 K.
2. Sultan Raja Eraj zaman son of late Raja Rukan Zaman Khan . . . Preferred appeals from attestation orders in mutations mentioned at serial Nos. 1 to 7.
As regards Mutation No. 3980, mentioned at serial No. 8 above, Mst. Eidun Nisa filed Appeal No. 30 of 1964, while Raja Eraj Zaman filed Appeal No. 26 of 1964. The learned Collector accepted the appeals, set aside the orders of the revenue officer and cancelled the mutation by his order dated 7-10-64, in each of the appeals relating to mutations mentioned at serial Nos. 1 to 7. However, it appears that Appeals Nos. 26/64 and 30/64 were both dismissed.
3. Mst. Eidun Nisa preferred further appeals from the judgments of the Collector, Hazara before the Additional Com--missioner, Peshawar Division, Peshawar. The learned Additional Commissioner by his short order accepted the appeals on 25-6-65.
4. Raja Sultan Eraj Zaman Khan preferred 8 revision petitions before the Member (Revenue), Board of Revenue, West Pakistan. The learned Member disposed of all the eight revision petitions by a single judgment. The following observa--tions from the judgment of the learned Member are worthy of reproduction:- "I have heard the learned counsel for the parties at great length. The legal position is quite clear.
Martial Law Regula--petition No. 64 imposed certain restrictions on alienations. So far as gifts proposed to be made under the provisions of paragraph 9 or paragraph 11 of Martial Law Regulation were concerned, these restrictions could be removed by the Deputy Land Commissioner. In the appropriate column of LC-11, the declarant owners were required to specify the area they proposed to gift. When the Deputy Land Commissioner passed orders, which were incorporated in Appendix G, it was specified as to what area was allowed to be gifted. His was only a permission to make gifts and the bar or restrictions imposed by Martial Law Regulation was removed so far as the area proposed to be gifted was concerned. Permission to make gifts does not mean that gifts were actually made. After the necessary permission had been given by the Deputy Land Commissioner, it was for the donor to actually make gifts and afterwards get the mutation sanctioned. Raja Sultan Rukan Zaman lived for about more than three years after the Deputy Land Commissioner's orders but no attempts were made to make gifts and to get mutations in respect thereof. It is, therefore, clear that he did not actually make any gifts."
Consequently the learned Member by his judgment dated 4-8-1966, accepted all the 8 revisions, set aside the orders passed by the learned Additional Commissioner and directed that the orders passed by the learned Collector shall stand and the mutations of gifts shall be cancelled.
This order of the learned Member la impugned in this writ petition.
Record perused. Mufti Muhammad Idris, Advocate, for the petitioner and Mr. S. M. Zaffar, Advocate, for respondent No. 5 heard.
The learned counsel for the petitioner raised the following 'n contentions:-
(1) That the gift in question after having been declared, was ordered and allowed by a competent authority, the Deputy Land Commissioner. The Member, Revenue Board was not competent to entertain revision petitions or to adjudicate upon the same in his capacity as Member, Board of Revenue.
(2) That there is no proof that Sultan Raja Rukan Zaman Khan ever revoked the gift.
(3) That the gift by husband to his wife is irrevocable gift and as such it does not require transfer of taking separate possession of gifted property.
The contentions are devoid of legal force.
It goes without saying that the Member, Revenue Board is also Chief Land Commissioner for the purpose of functions under the Land Reforms Regulation. Revision lies to the Chief Land Commissioner under rule 12 of the West Pakistan Land Reforms Rules, 1959.
The contention of the learned counsel that the gift in favour of the petitioner by her late husband after having been declared by the donor and allowed by the Deputy Land Commissioner, a competent authority, could not be annulled, is devoid of legal force. To appreciate the point, for the sake of expediency, the relevant paras. Of Martial Law Regulation No. 64 are reproduced below --- "7. Certain transfers void.-(1) Save as otherwise provided In this Regulation, the transfer of any land, and the creation of any right or interest in or encumbrance on any land, made in any manner whatsoever on or after the eighth day of October 1958, by any person holding immediately before that date, an area of more than 500 acres of irrigated land or an area equivalent to more than 36,000 produce index units, whichever shall be greater shall be, and shall be deemed always to have been void, and the land so transferred or encumbered shall be deemed to have been owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that date.
9. Exemptions.-N6twithstanding the provisions of para--graph 8-
(a) .
(b).
(c) .
(d) .
(e) .
(f) an existing owner whose holding is greater than the area of five hundred acres of irrigated land or the equivalent of thirty-six thousand produce index units may transfer to any or all of his heirs such additional area, if any, as taken together with any area gifted by him to all or any of his heirs on or after the fourteenth day of August 1947, and any area retained by him under clause (e) above, would bring the aggregate area so transferred to the equivalent of eighteen thousand produce index units : Provided that the maximum area permissible to be retained under clause (e) shall, in no case, be treated as more than the equivalent of six thousand produce index units.
Explanation.-A person who came into ownership or possession by virtue of a gift made on or after the fourteenth day of August 1947, shall not, where the donor is alive, be entitled to claim as existing owner the benefit of the exemption under clause (e) or clause(f ).
11. Special provision for female dependants.-(1) The Com--mission may, on the application of an existing owner holding ancestral land, allow him to transfer by v; ay of gift, in addition to the area which he can give under paragraph 9(f) a maximum area equivalent to six thousand produce index units to each of his female dependants;"
Paragraph 11 provides that on an application by an existing owner holding ancestral land the Commission may allow him to transfer by way of gift certain area to a female dependant. Form LC-II (Annexure A and Annexure A/1) in the relevant column provides for entry to be made regarding "area proposed to be transferred by gift under paragraph 9(f). "In his order dated 11-6-59 (Annexure B) the Deputy Land Commissioner, Hazata in para. 2 has allowed the declarant Raja Sultan Rukan Zaman Khan to gift an area equivalent to 1225.999 acres to his wife Mst. Eidun Nissa.
Thus it is established from the entries in LC-II and the order of the Deputy Land Commissioner that the declarant had proposed to transfer land by gift to Mst. Eidun Nisa, and the Deputy Land Commis--sioner allowed him to gift.
Under the Mahomedan Law for making a valid gift three essentials are to be complied with. D. F.
Mulla in his "Principles of Mahomedan Law", 15th Edition, page 130, para. 149, has referred to the three essentials as under:- "149. The three essentials of a gift.---It is essential to the validity of a gift that there should be (a) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in section 150. If these conditions are complied with, the gift is complete."
The first essential for a valid gift is an unequivocal declaration of gift. In the present case, no documentary evidence has been produced to show that the donor has made such a declaration.
The proposal for the transfer by way of gift in LC-II and the permission to gift by the D. L. C. Do not per se amount to a declaration of making gift by the donor. It appears that the statute of Martial Law Regulation No. 64 has left it to the parties to give effect to the proposal and permission so as to make a valid and complete gift by taking other necessary steps.
The argument that the gift in question had already been declared before its entry in the Form LC-II also does not appeal to reason. Para. 7 of the Regulation declares the transfer of any land and the creation of any right or interest in any land made in any manner on or after the 8th day of October 1958, void unless otherwise provided in this Regulation. There is no evidence to the effect that the gift in question had been declared before the order of the D. L. C., and if any such declaration of gift is presumed to have been made, such declaration of gift would be void under para. 7 of the Regulation.
A mere proposal or permission to gift does not tantamount to a declaration. This aspect of the case has to be judged, regard being had to the conduct of the donor and the donee. Section 34(1) of the Punjab Land Revenue Act, which was then in force, requires that any person acquiring, by inheritance, purchase, mortgage, gift or otherwise, any right in an estate as a land-owner, assignee of land revenue or tenant having a right of occupancy, shall report his acquisition of the right to the Patwari of the estate. In the instant case all the seven mutations, quoted at serial Nos. 1 to 7, were entered and attested after the death of the donor. The donor died on 25-9-63. The entry and attestation of these mutations were effected after the death of the donor and after about four years of the submission of Form LC-II and the order of the D. L. C. Dated 11-6-59. Mutation at Serial No. 8 regarding Khanpur was entered about 12 days prior to the death of the donor but it was not attested after his death.
The learned counsel for the respondents referred to two gift Mutations (Annexure R. 1 and R. 2). Gift Mutation No. 1018 (Annexure R. 1) relating to Pind Gakhara, was entered on b-half of Raja Sultan Rukan Zaman Khan in favour of Mst. Eidun Nisa on 10-8-61 but the same mutation was rejected on 16-6-62 in Jalsa-i-aam at Khanpur on the basis of refusal of the donor. Similarly gift Mutation No. 305 (Annexure R. 2) relating to village Kotha was entered on 10-8-61 and rejected on 13-7-62 on the "Inkar" of Raja Rukan Zaman Khan. The conduct of the donor refusing to transfer land by way of gift by Mutations (R. 1 and R. 2) in his lifetime and the silence of the donee to report her acquisition of the right by gift to the Patwari in the lifetime, of the donor establishes the fact that the donor, if alive, would not have gifted the remaining land also proposed by him to be gifted to the donee as per Forms LC-II. Reliance is placed on Mumtaz-un-Nissa and another v. Tufail Ahmad and another (I L R 28 All. 264).
We are not convinced with the arguments of the learned counsel for the petitioner that the gift being between husband and wife requires no separate transfer of physical possession of the land in dispute. It is not the case of the petitioner that separate physical possession of the land transferred by way of gift to the petitioner was delivered to the donee. The learned counsel vehemently argued that because the donor and the donee were living as husband and wife and gift mutations were attested, therefore, separate transfer of possession of the gifted property was not essential. The learned counsel for the petitioner relied on Ma Mi and another v. Kallander Ammal (AIR 1927 P C 22), wherein it has been held:- "In the case of a gift of immovable property by a Mahomedan husband to his wife, once mutation of names has been proved, the natural presumption arising from the relation B of husband and wife existing between them is that the husband's subsequent acts with reference to the property were done on his wife's behalf and not on his own."
This authority would be of no assistance to the petitioner because in the present case the mutations were attested after the death of the donor and it is not the case of the petitioner that the donor had done subsequent acts with reference to the gifted land on behalf of the donee. For lack of unequivocal declaration of intention to gift and in the absence of entry and attestation of disputed gift mutations in the lifetime of the donor, the ambiguity as to possession between a husband and wife would not be cured. See K. S. Agha Mir Ahmad Shah and others v. K. S. Agha Mir Yaqub Shah and others (PLD 1957 Kar. 258).
Even in case of husband and wife, both residing together, actual delivery of possession of the property to the donee by the donor and the donor divesting himself of the possession of the C Property is absolutely necessary because delivery of possession of the subject of the gift by the donor to the donee is a necessary condition to be complied with for the completion of a valid gift.
See:
(1) Jabbar Pramanlk v. Nurjahan Bewa and another PLD 1960 Dacca 489; and
(2) Shamshad AU Shah and others v. Syed Hassan Shah and others PLD 1960 Lah. 300.
Parties to bear their own costs.