' K. M. A. SAMADANI, J,--The transaction in question in this case is one of gift of agricultural land made by one brother in favour of another. The Punjab Land Commission refused to recognize this gift for the purposes of land reforms on account of the fact that such a gift is not exempt from the operation of para. 7 of the Land Reforms Regulation, 1972. But the learned counsel for the petitioner relies upon a notification issue by the Punjab Land Commission on the 23rd of January 1974 in exercise of the powers conferred upon it by sub-para. (8) of paragraph 4 of the said Regulation.
According to this notification a gift by a brother in favour of another brother who has not received his due share in the inheritance of ancestral land, has to be treated as a valid transfer.
' However, in another case entitled "Malik Muhammad Abbas Khan v. The Additional Chief Land Commissioner and another," the Federal Land Commission has held this notification to be ultra vires the Regulation and disregarded it.
2. In the present case, the petitioners have come to this Court without taking the issue first to the Federal Land Commission. If they had preferred a revision petition before the Federal Land Commission, they could perhaps have succeeded in persuading the Federal Land Commission to revise its earlier view. In case of failure, it would certainly be open to them to knock at the door of this Court. Regardless of whether it is always necessary for a writ-petitioner to exhaust all other remedies before invoking the writ jurisdiction of a High Court, in this particular case, it was absolutely necessary for the petitioners to have taken the matter to the Federal Land Commission.
On this short ground alone this writ petition is liable to be dismissed.
3. Further, in this case the father had in his lifetime transferred some land exclusively to one of his sons 1.e. The donor-brother. But on the father's death the two brothers i,e, the donor and the done; inherited the property left behind by their deceased father in equal shares. It is thus clear that when the father had transferred part of his property to his one son to the exclusion of the other, the inheritance had not opened and subsequently, when the father died and the inheritance did open, the two brothers inherited their due shares.
4. Although the learned counsel for the petitioners has contended with considerable force that the proviso to paragraph 7(1) (b) of the Land Reforms Regulation is applicable to this kind of inequitable distribution of property, we are of the opinion that the decision of the Supreme Court in Syed Muhammad Ahmad Shah's case (1) is by inference attracted to the facts of the present case and makes the notification of the Punjab Land Commission dated 23rd of January 1974 inoperative at least so far as the petitioner's case is concerned.
5. The writ petition is accordingly dismissed with no order as to costs.
(1) 1974 SC MR 409