1. MUHAMMAD AFZAI, ZULLAH, CJ.-- This appeal through leave of the Court has arisen in a land reforms case. The facts as stated in the impugned judgment, relevant for the present appeal, are: That Jamshed Iftikhar appellant No.3 transferred land to appellants Nos. 1 and 2 on 20th November, 1971.
2. Mutation was sanctioned on 22-1-1972. He being a declarant under the Land Reforms Regulation, 1972 mentioned this transaction in hisdeclaration. The Land Commissioner, Multan treated it as invalid by his order dated 12-9-1972. However, on 14-9-1972 he suo motu recalled the earlier order and declared the transaction as valid.
3. The Federal Land Commissioner later on declared the disputed gift as invalid by order dated 23-10- 1976. On a writ petition filed in the High Court it was pleaded that the gift made to appellants Nos. 1 and 2 was in favour of unmarried sisters who had not received their due share of inheritance, therefore, was covered by clause (ii) of the second proviso to para. 7(1)(b) of the Land Reforms Regulation, 1972. This argument was repelled on the reason that "in the case in hand admittedly nothing would have been found due to the petitioners on the demise of their father as he had gifted away in his lifetime his entire property to his son, respondent No.l". . The question of lack of opportunity of hearing was also raised, before the High Court but the same was repelled because according to the finding on the first question the daughters had no right to any share of inheritance. Accordingly, the writ petition was dismissed. Leave to appeal was granted for examination and interpretation of paragraph 7(1)(b) of MLR 115 of 1972 referred to above. The relevant proviso in paragraph 7 reads as follows:- "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- (i)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 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 (iii)any transaction whereby any land was alienated in exchange for an area of land equivalent to the same or substantially same produce index units as the land alienated."
4. Learned counsel has contended that if proper hearing had been afforded to the appellants it might have been argued that the case was covered by the first exception to the proviso. It is further contended that the appellants have a good case on the basis of the second exception in clause (ii). Under the proviso. It provided that the transfer of land as in this case by way of gift in favour of appellants Nos.l and 2 who had not received their due share of inheritance out of the ancestral land held by their father, was not hit by the main proviso.
5. There is considerable force in the argument of the learned counsel. The expression used in clause
(ii) namely, "share of inheritance of ancestral land" has somewhat different connotation than "share of inheritance in ancestral land". A widowed or unmarried sister of the donee who had been deprived of share of the inheritance of ancestral land even by the ancestors of the donor would be covered by the phrase used in clause (ii) in the exceptions. No doubt the expression "widowed sister" visualises cases of long periods of deprivation of females of the specified class. It is also well known that on, account of customary constraints the females of the specified class were kept unmarried for long periods. For similar constraints they were along with their unfortunate widowed sisters kept deprived of the share of inheritance of ancestral land. The framers of the law did intend to ameliorate this unjust condition and provided an opening for self-respecting brothers to concede the share of inheritance of ancestral land to their widowed and unmarried sisters; notwithstanding the fact that they had been deprived of the same by their ancestors.
6. In this case it is not disputed that the donor's father who would be treated as last male-holder in the context of the present case having died his inheritance had already opened. It also cannot be denied that the sisters of the donor; namely, the appellants Nos.l and 2 had already been deprived of their shares of ancestral land by the donor's father making gift only in his favour. Thus this case was covered by clause (ii) in the exceptions to the proviso in question and there was no justification for exercise of suo motu revisional jurisdiction by the Federal Land Commission.
7. Before parting with this judgment it needs to be mentioned that the learned counsel cited the decision by this Court dated 10-7-1991 in Civil Appeals No.292 and others of 1984 (Muhammad Tahir Shah etc. v. Federal Land Commission etc.) wherein donee sisters from a brother were not allowed the benefit of clause (ii) to the proviso. In paras. 10 and 11 of the said, judgment it was observed as follows:- 'The gifts made to an unmarried or widowed sister are governed by sub-clause (ii) of the second proviso to paragraph 7(1)(b). Under this sub-clause a gift could be treated as valid only if the `widowed' or `unmarried' sister of the donor had not received her due share of inheritance of ancestral land. The language in which the sub-clause is expressed irresistibly suggests that it refers to the agnatic rule that prevailed under the custom whereby the sisters were deprived of their personal law share in the ancestral land left by the common ancestor. It applies only in those cases where the inheritance had already opened prior to the making of the gift consequent upon the death of the common ancestor, there has been an unfair distribution of the ancestral land and the gift has been made by a brother to his sister with the object of undoing the inequity perpetrated on her. 1n the appeals before us the gifts were made at a time when the common ancestors of the donors and donees were still alive and inheritance to their estates had yet to open. `Thus' the subclause is in terms not attracted here." On behalf of the appellants it was contended that the word "inheritance" as occurring in sub-clause (ii), ibid, should be given an extended meaning so as to cover even those cases where the common ancestors had diverted the course of succession by disposing of most of their ancestral land in their lifetime. It was stated that the common ancestors of the parties had transferred most of their lands to the declarants who were their male heirs by way of gifts with the view to deprive their female heirs of their Muslim Law, shares and were thus left either with no ancestral land or with only small parts thereof with the result that upon their death it would not be possible for the female heirs to receive their due shares in the ancestral land. It was urged that it would be in the interest of justice if in these circumstances the gifts made by the declarants to their sisters were upheld even though inheritance to the estates of the common ancestors - had yet to open in the strict sense. This contention, even though attractive, is without any merit. As noficed above, the first proviso to paragraph 7(1)(b) is so worded that it makes all gifts by the persons mentioned in the principal clause to be void. However, the second proviso makes exceptions in certain cases. The scope of the exceptions cannot be extended so as to impair the general provision contained in the first proviso. The use of expressions `inheritance' `ancestral land' and `due share' in sub-clause (ii), ibid. Narrows down its scope and it will be defeating the legislative intent if it is made applicable to cases where the inheritance has not yet opened (Underlining is our).
8. The above reproduced reasoning is obviously influenced by the main feature and ratio in those cases; namely, that clause (ii) in the exceptions applies only in those cases wherein the inheritance had already opened prior to, the making of -the gift, after the death of the common ancestor.
9. There has been an unfair distribution in this case of ancestral land, and, the gift has been made by a brother to his sisters with the object of undoing the inequity perpetrated on them.
10. Accordingly, we can assume that if the inheritance would have opened at the relevant time in the appeals before this Court in the afore-referred cases, the results would not have been the same.
11. Similarly the ratio in another case decided by this Court; namely, Muhammad Ahmad Shah & Co.
12. Additional Chief Land Commissioner, Punjab (1974 SCM R 409) which was also relied upon in the afore-noticed decision of this Court of dated 10th July, 1991 in the case of Muhammad Tahir Shah for the same distinguishing reason as discussed above, would not be attracted in this case.
13. In the light of the foregoing discussion this appeal is allowed. The High Court judgment as well as the judgment and orders impugned before the High Court are set aside with no order as to costs.