' This is an appeal against the order dated 12-6-1972 passed by the Land Commissioner, Lahore, whereby he held that mutation No, 714 of village Hinduwana, tehsil Hafizabad, district Gujranwala required review. The area involved in this mutation was according to this order, counted towards the holding of the appellant for purposes of M. L. R.
115.
2. The alleged facts of the case briefly are that Maula Dad alias Maula gave away as oral gift 157 acres, 5 kanals and 19 marlas of his agricultural land equivalent to 9,502 P. I. Us. To his two sons Mehdi Khan and Khalid Sahib vide mutation No, 714 sanctioned on 13-10-1971. This very land had earlier been hypothecated by the donor-appellant with the Agricultural Development Bank, Hafizabad, for Rs, 24,000 but while alienating the land in favour of his sons, he did not obtain the consent of the said Bank for doing so.
3. The said Maula Dad alias Maula was affected by M. L. R. No, 115 and he submitted his declaration form in which he indicated the land involved in this mutation as having been gifted away to his two sons, The transfer was scrutinised by the Land Commissioner, Lahore, who vide his impugned order dated 12-6-1972 observed that the mutation required review. Aggrieved against that order, the appellant has come up in appeal before this Court.
4. The case was referred by me for enquiry and report to the Legal Advisor, who has submitted his report dated 31-10-1972, which I have seen. I have also heard the learned counsel for the donor and donees, and seen the record of the case.
5. The counsel for the appellant has been heard in detail. While last arguing the case on 12-12-1972, the learned counsel produced photostate copy of receipt No, 125705 dated 9-12-1972 for an amount of Rs, 22,697.65 from the Agricultural Development Bank stating that the outstanding amount of Agricultural Development Bank in respect of land which was hypothecated with the bank had been paid off. The appellants were, however, directed by me to produce certificate from the Agricultural Development Bank clearly certifying that all the outstanding amount in respect of the land in dispute referred to in mutation No, 714 which was hypothecated with the Agricultural Development Bank for a loan of Rs, 24,000 had been paid off, that the land was no longer pledged with the Bank and that the Bank had no objection to the gift of the said land by Maula Dad appellant in favour of his sons Mehdi Khan and Khalid Sahib being accepted.
6. Pursuant to this direction the learned counsel has produced in original a certificate from the Agricultural Development Bank, Hafizabad No, L. C./ 1756/816 dated 2-12-1972, certifying that the whole amount of the mortgage money of Rs, 22,696.65 including interest had been paid to the Bank vide receipt No, 125705, dated 9-12-1972. The Bank had, therefore, no objection to the gift of the land being made by Maula Dad to his sons Mehdi Khan and Khalid Sahib. The learned counsel have also produced another letter No, L. C./1757/8163, dated 22-12-1972 from the Manager, Agricultural Development Bank Hafizabad informing the Tehsildar that Maula Dad had repaid full amount of loan with uptodate interest and requested the Tehsildar that his (Maula Dad's) lands pledged with the Bank may kindly be redeemed. The learned counsel have also produced a copy of Mutation No, 731, dated 23-12-72 through which his lands, earlier hypothecated in favour of Agricultural Development Bank, is being redeemed and Maula Dad appellant is under the new entries being given clear title without encumbrance of the land in question. The learned counsel now wish to argue that after this redemption, there should be no objection to the gift being made in favour of the donees and Muation No, 714 dated 1-8-1971 being accepted as in order for purposes of M. L. R. No, 115.
7. The question, however, that arises in this case is that if the land was already mortgaged with the Agricultural Development Bank on 1-8-1971 and remained so mortgaged till 9-12-1972 whether the gift by the donor-appellant in favour of the donees was a valid alienation. The learned counsel has contested that the alienation was voidable at the instance of the Bank but was not void and since the Bank has now written to say that the alienation should be accepted, it should be accepted. My attention has however been invited to letter No, L. C./1756/5244 dated 27-5-72 from the Manager, Agricultural Development Bank of Pakistan, Hafizabad to Tehsildar Hafizabad in which he had stated as follows : "As already pointed out we advanced a loan of Rs, 24,000 to Mr. Maula Dad alias Mouloo son of Sohna, resident of Hinduana, Tehsil Hafizabad and mutation was entered in favour of the Bank vide mutation No, 711. According to the rules, the land mortgaged with the Bank cannot be transferred in any way to any body, but the applicant transferred his land as Hiba to his minor sons vide Mutation No, 714 the fact relate to village Hinduana. You are therefore, requested to cancel mutation No, 714 so that the interest of the Bank may be saved. If possible, cirminal proceedings against the culprit may also be started."
' It is, therefore, obvious that as late as on 27-5-1972 the Agricultural Development Bank was against the alienation being accepted. The learned counsel has further contested that it was a mortgage without possession and therefore the appellant was authorised to hand over the possession of the land in question to the donees alongwith the encumbrance of the land. On reference to Mutation No, 714 in question I do not however, find any entry that the mutation was alongwith encumbrance on the other hand. I have seen application dated, 5-10-1971 from Maula Dad addressed to Assistant Commissioner, Hafizabad asking for permission to alienate the land in favour of his sons wherein he has clearly stated that : ' The Assistant Commissioner gave the following orders dated 2-10-1971.
"THERE IS NO OBJECT ION TO THIS GIFT. N. T. SHOULD PROCEED"
' This Assistant Commissioner is reported to have been compulsorily retired from service under M. L, R, 114.
8. The learned counsel has also raised the question that even after alienating the land in question vide mutation No, 714 Maula Dad appellant had been left with sufficient land to pay all the loan of the Agricultural Development Bank. On the other hand I find that vide mutation No, 711, dated 9.12- 1970 the 2/3rd part of holding of Maula Dad consisting of 1892 kanalas and 17 marlas had been hypothecated in favour of the Agricultural Development Bank. The question that arises that if the remaining 1/3rd land that was available with the appellant after alienating part in favour of the donees vide Mutation No, 714 was adequate to pay off all the loan of Rs, 24,000 why was his 2/3rd part of holding hypothecated in favour of the Bank.
9. It is obvious from the facts of this case that Maula Dad declarant-appellant made the double alienation of this land while it was already mortgaged to the Agricultural Development Bank. When the appellant alienated this land by gift in favour of his two sons the Agricultural Development Bank raised an objection and requested for criminal proceedings against the declarant vide Manager, Agricultural Development Bank of Pakistan, Hafizabad's lettter No, L. C./1756/5244 dated 27-5-1972.
It is, therefore, obvious that in the circumstances as detailed above, the gift was legally defective and could not take effect till at the earliest 9-12-1972 when the Manager wrote to the Tahsildar that the land pledged may be redeemed. This date is obviously subsequent to 20-12-1971 which is crucial date and all alienations on or after this date are to be treated as void under para. 7(1)(a) of M. L. R.
115. In the present circumstances of the case the gift cannot be accepted as having been effected before this date. In view of this the area of 157-A, 5 kanals and 19 marlas of land involved in gift mutation No, 714 of village Hinduana has to be treated as part of the holding of the declarant- appellant for determination under para. 8 of M. L. R.
115.
Parties to be informed.