IMAM ALI G. KAZI J .--The petitioners Mst. Afroz, Mst: Inayat Khatoon and Mst. Lal Khatoon respectively being the daughter, wife and mother of the fourth petitioner Amir Hamzo have all made a grievance of the order dated 20-3--1979 passed by the Senior Member, Federal Land Commission, Rawalpindi in Case No. SMR 847/60/ELC/75. By the said order certain transfers made by Amir Hamzo in favour of the three ladies have been declared to be void for the purposes of Land Reforms Regulation, 1972. These transfers have been declared void on the following grounds (1)As the agricultural land in Delis 11-Dad and 14-Dad were held by Amir Hamzo on restricted tenure, under Sinn Act III of 1899 and he had transferred the same to the three ladies without first' obtaining permission of the Collector to do so as required by that law.
(ii)Gifts made on 16-9-1971 in village Lakha in favour of the ladies did not reflect consequential change, in village Form VIII-A or. B thereby indicating that the transfer of actual possession of the land did not take place. Exception on this score was taken only in respect of 1/3rd share gifted to Mst. Lal Khatoon the mother of Amir Hamzo.
(iii)That the gift of 30 paisa share being divided share out of total 50 paisa share in village Kazi Ahmed in favour of the ladies was held to be not permissible under Muslim Law.
2. Amir Hamzo, the fourth petitioner in this case had out of his holding of agricultural lands made certain transfers during the period between 1-3-1967 and 19-12-1971 in favour of certain persons, both heirs and non-heirs. He was, therefore, required to disclose all such alienations of agricultural lands Made by him under para 12 of the Land Reforms Regulation, 1972 (M.L.R.115). The Land Commissioner, Sind as the delegatee of the authority of the Sind Land Commission for the purpose of para 7 of the Regulation scrutinized such transfers out of which he declared the transfers in favour of the afore-mentioned three ladies as bona fide. Thereafter, the case of declarant Amir Hamzo was dealt with by the Deputy Land Commissioner for the purpose of its paragraph 8. His case for all the practical purposes of the said Regulation was thus finalised by his order-dated 6- 6-1973. Subsequently, in 1976 the then Chairman, Federal Land Commission, Rawalpindi purporting- to exercise his suo motu powers of revision under para 29 of the said Regulation, issued notice to the petitioners requiring them to show cause why such alienations be not declared as void. Before the Chairman, Federal Land Commission could exercise his powers, a Constitutional Petition being C.P.No. D-136 of 1976 was fled in this Court and injunction obtained by the petitioners. The proceedings thus initiated remained inconclusive till the enactment and enforcement of Law Reforms Act, 1977. Section 25 of the said Act (Act I4 of 1977) provided that all proceedings pending before the Federal Land Commission shall on its commencement stand abated. In view of such provision of law having been made, petitioners considered 'futile `to pursue C.P. No: D-316 of 1976 and withdrew the same. It appears that the Federal Government on 23-0-1978 issued a notification bearing too. II-1977/-LRtl-78 under section 25 of Act-II of 1977 whereby all such pending proceedings were revived and brought within the competence of the Federal Land Commission.
The Federal Land Commission then issued a notice to the petitioners and re-- started the proceedings. The petitioners filed another constitutional Petition No. D-86 of, 1979 and obtained interim relief in the matter. During the pendency- of this petition, the Senior Member, Federal Land Commission took up the case and passed an order referred to hereiRabv6e, which has been impugned in this petition.
3. Mr. Mushtaq Memon, learned Advocate appearing for the petitioners has assailed the impugned order on the following grounds;.
(i)That tie alienations in village. 11-Dad and 14-Dad have been invalidated on the sole ground that Amir Hamzo had transferred the land held by him under restricted tenure without obtaining permission of the Collector of the District as required by Sind Act-III of 1899. This Act was repealed by the West Pakistan Ordinance XXXVI of 1969, on 3-11--1969. The transfers in, question were made after the repeal of the said enactment and there was no authority 4ccording to law which could grant or refuse such permission and by, the repeal of such enactment permission to transfer agricultural land held on restricted tenure was no more necessary.
(ii)Gift in village Lakha has been declared void to the extent of 1/3rd share gifted to Mst. Lal Khatoon, the mother of declarant Amir Hamzo, on the ground that possession. Of the land alienated had not passed to her as consequential entry in the village form VIII-A was not changed in her favour. In this respect he stated that alienation of land by way of gift in equal share was made in favour of the daughter, wife and mother of the declarant through a common statement and the Senior Member himself has accepted validity of the gift in respect of the other two donees.
He has further urged that mother is a specified heir in terms of Explanation 1 to para 7 of the Regulation and such gift cannot be questioned by any authority under the Regulation according to the second proviso to paragraph 7.
(iii)The third alienation by way of gift in village Kazi Ahmed in favour of the three ladies has been declared as not bona fide on the ground that undivided share of laced could not be gifted under the Muslim Law. According to him gift of `Musha' in a Zamiudari is valid.
(iv)That notification issued by the Federal Government in 19,78 whereby all such cases pending before the Federal Land Commission were revived in spite of the same having abated is beyond the scope of section 25 of Act II of 1977.
4. The transfer of lands in villages 11-Dad and 14-Dad have been declared as not bona fide transfers for the purposes of the Regulation as permission of the Collector to transfer the same was not first obtained by the transferor, the land being field by him on restricted tenure. Such a' proposition came under consideration of a Division Bench of this Court in C.P.No.D-122 of 1977 (Jaffer Khan and 2 others v. O.S.D. Federal Land Commission, and others) and the objection to that effect was repelled and petition accepted. On the repeal of Sind Act-III of 1899 as stated above, prior permission of the Collector to transfer land held on restricted tenure under that Act was no more, necessary. Further on account of repeal the Collector did not have power to either grant or refuse such permission.
5. The alienations in village Lakha in favour of Mst. LAI Khatoon, the mother of declarant Amir Hamzo were invalidated as according to the Senior Member, Federal Land Commission transfer of possession of land.. Was not reflected in village Form VIII-A. Village Form VIII-A- is a prescribed form in the Village Account Manual kept under the Sind Land Revenue Code. This form is basically a form that keeps the track of crops cultivated in each season and the assessments of Land Revenue made an the basis of crops are recorded therein. Form VIII-A is primarily meant for the use of the village staff of the revenue department for the purpose of collection of land revenue, other charges, cess and rates. The land owners are hardly directly concerned with this form. Similar objection was taken in another case by the O.S.D. Federal Land Commission, which was the subject-matter of the petition decided by this Court and reported in 1980 CLC 1395 (Sain Bux and 4 others v. OSD Federal Land Commission, Rawalpindi), The relevant observation in- that case is reproduced as under; "As to the other ground assigned by the OSD regarding no change having been made: in the Village Form VIII-A in the names of the donees, mutation entries having been duly recorded in their names in the Dakhil Kharij Register, which is the register for recording such mutations, and the genuineness of the said entries not being Shown to have been doubted, mere absence of change of their names in Village Form VIII-A was not material in the circumstances and could not operate in law to invalidate the entries in the Dakhil Kharij Register and the making of the gift. Further, the donor petitioner No.1 had, admittedly, retained 25 paisas share in the land with himself and his name continued to remain in Village Form VIII-A as `Mukh Khatedar.' Such being the case, this was yet another reason which rendered immaterial the absence of change of the names of the donees in the Form VIII-A, apart from the fact that Village Form VIII-A is maintained by the Revenue Department as harvest inspecting register primarily for enabling them to levy land revenue etc. On the basis of the crops cultivated.
6. The alienation in village Kazi Ahmed has been declared invalid by the Senior Member, Federal Land commission as the subject----matter ofgift was out of a share of undivided property on the basis of principle of Mushaa under the Muslim Law contained in paragraph 149 of the Principles of Muhammadan Law by Mulla which is reproduced below; A gift of an undivided share (Mushaa) in property which is capable of division is irregular, but not void, it 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: According to the exceptions provided therein a gift of an undivided share Mushaa) though it be a share of property capable of division, is valid from the moment of the gift, even if the share is not divided off and delivered to the donee, in the following cases, (i)Where the gift is made by one co-heir to another.
(ii)Where the gift is of a share in a zamindari; (iii)Where: the gift is of a share in freehold property in a large commercial town; and (iv)Where the gift is of share in a land, company.
It will thus be seen that the learned Member, Federal Land Commission committed an error of his jurisdiction by not accepting the accepted proposition that gift of share (Mushaa) in a zamindari is valid under the Muslrm Law.
7. In addition to the reasons mentioned above the Senior Member, Federal Land Commission also fell in- error by exercising jurisdiction due to following reasons:-- (i)The first three petitioners being daughter, wife and mother of the declarant/transferor Amir Hamzo arc the heirs specified in Explanation I to para 7 of the said Regulation. According to the second proviso to para 7(i) (b) of the Regulation, nothing in that clause shall apply to "any transfer of land or creation of any right or interest in encumbrance on any land by way of gift or otherwise made by a person in favour of heirs". This completely bars the jurisdiction of all authorities created by the Land Reforms Regulation, 1972 from examining transfers of lands by any means to the heirs of a land owner. Such a view has been taken in case: reported in PLD 1974 Lah 456, PLD 1977,Lah 401, PLD 1979 Lah 375. 1981 CLC 1200,1982 CLC 1472 and 1945 which we respectfully follow.
(ii)This, case was taken as revived by virtue of the Notification No. II of 1977 LR-I of 78 of 23-9-1978 issued by the Federal Government under section 25 of the Act II of 1977 by the Senior Member, Federal Lang Commission. The Federal Government was competent to revive a case or class of cases pending before the Federal Land Commission at the, commencement of that and could not by issuing a notification all the pending cases and thereby nullify the effect of abatement of cases.
The Notification is, therefore, to be struck down as ultra vires of the Act, itself. Similar language was used in selecting cases for detailed security under the Income-Tax Ordinance, 1979 and became the subject-matter of the case reported in PLD 1985 Kar. 572 (Cannon Products Ltd v, Income-Tax Officer and 2 others) and it was held that by phrase "any case" or "classes of cases" employed in subsection (2) of section 5 of the Income-Tax Act, 1922 does not warrant the assignment of cases by the Central Government person wise. Similarly, the Federal Government could not by issuing a Notification generally revive all cases which in fact had abated by provision made in section 25 of the Land Reforms, Act, 1977. On this ground too the Senior Member, Federal Land Commission clearly, acted without any jurisdiction.
8. In view of tire reasons mentioned hereinabove, the order impugned in this petition cannot be allowed, to be maintained. The Senior Member, Federal Land Commission by passing the impugned order has acted beyond his jurisdiction by, declaring such transfers as not bona fide under para 7 of the Land Reforms Regulation, 1972. The impugned order, therefore, is hereby declared to have been passed without any lawful authority and to be of no legal effect and is quashed.
9. As a result 'of this order, gift in favour of Mst. Lai Khatoon in village Lakha will also be treated as vaid with the result that the holding of declarant Amir Hamzo in that village will be reduced below the minimum ceiling of 16 acres and will come within the mischief of para 24 of the Regulation and the area of the gifts of land in this village in favour of the three ladies will be reduced proportionately so as to make a balance of 16 acres available with the declarant to avoid the gifts from being void. The Deputy Land Commissioner, Nawabshah, will, therefore, be free to re- determine the holding of declarant Amir Hamzo under para 8 of the Regulation after adding the increased area to his holding due to such modification.
10. The petition is accepted with no order as to costs.
By a short order we had allowed the petition earlier and above are the reasons for the same.
M.A.K./A.569/K.