' This revision petition has been filed to challenge the judgment dated 30-6-1996 of the learned Additional District Judge, Hafizabad whereby the judgment of the learned Senior Civil Judge, Hafizabad dated 19-12-1994 was set aside and the appeal was accepted.
2. Hassan Muhammad who is predecessor-in-interest of the petitioner as well as of respondents migrated to Pakistan from occupied Jammu and Kashmir after the disturbances there. He was temporarily allotted 41 Kanals and 3 Marlas of agricultural land situated in village Mangat, Tehsil Hafizabad. The allotment was made in his name as head of the family comprising of 3 persons. It is admitted that apart from Hasan Muhammad the other two members of the family were Bashiran Bibi petitioner and Naziran Bibi respondent No,12 in the petition both his daughters. Hasan Muhammad later on merried Fatima Jan respondent No,1 and out of this wedlock he had three sons who are respondents Nos.2 to 4 and four daughters respondents Nos.5 to 8.
3. Hasan Muhammad got the permanent allotment in his own name and mutation attested accordingly. After allotment he transferred the land by means of gift in favour of his three sons from his second wife, vide Mutation No,450, dated 21-11-1985. It is the case of the petitioner that she applied for the review of relevant mutation, the permission for which was allowed by the District Collector on 23-10-1986 (Exh. D2). In pursuance of the permission mutation in favour of Hasan Muhammad, was reviewed and new Mutation No,508 was sanctioned on 24-12-1986, whereby Bashiran Bibi petitioner and Naziran Bibi respondent No,12, were also included as shareholders in the allotted land.
4. The review of the mutation gave rise to the suit which was filed by Hasan Muhammad on 24-1- 1987 challenging the review proceedings and the resultant Mutation No,508. Only the petitioner, Mst. Bashiran Bibi, who was defendant No,4 in the suit, contested the suit whereas the other daughter Naziran Bibi who was defendant No,5 did not contest the suit. It may be noted that pending the suit Hasan Muhammad died and respondents Nos.1 to 8 were impleaded as successors who pursued the proceedings. As a result of the pleadings, the learned trial Court framed issues (which need not be repeated here) and the parties led their evidence in support of their respective claims.
5. The learned trial Court dismissed the suit vide judgment dated 19-12-1994 and upheld the review allowed by the Collector. The said judgment was appealed against by respondents Nos.1 to 8 which appeal was accepted by the learned Additional District Judge, Hafizabad vide judgment dated 30- 6-1996. Hence this petition.
6. Learned counsel for the petitioner contends that since the initial temporary allotment, in his words" allowance for maintenance of the family" was for three persons, the permanent allotment was also required to be made in the name of three persons i,e, Hasan Muhammad, Bashiran Bibi and Naziran Bibi; and that neither Hasan Muhammad her father could get the allotment in his own name alone nor it could ensure for the benefit of other wife and children of Hasan Muhammad. He has placed reliance on a memorandum issued by the Board of Revenue, Punjab dated 21-11-1978 circulated by the Board vide its letter dated 2-12-1978 to the Deputy Commissioners. He also relies upon Dil Bibi v. Amir Hussain and others (1990 CLC 1994) which is the order of the Board of Revenue itself and Mst. Barkat Bibi v. Mst. Sakina Bibi and 7 others (1991 CLC 546). It was his further contention that although Hasan Muhammad could dispose of his entire holdings by means of a gift to his sons yet since the title of Hasan Muhammad himself was valid to the extent of 1/3rd, the gift was illegal and void to the extent of the petitioner's share.
7. On the other hand learned counsel for respondents Nos.1 to 8 has submitted that the Revenue Authorities have incorrectly interpreted the memo dated 21-11-1978 of the Board of Revenue hence the review of the mutation was illegal and that the learned appellate Court has correctly interpreted the said memorandum. He supports the judgment of the learned Additional District Judge.
8. I have considered the arguments of the learned counsel for the parties and have gone through the record.
9. The temporary allotments were made to the refugees from Jammu and Kashmir for maintenance purposes and were commonly known as Guzara allowance. This was purely a temporary arrangement to meet the extra ordinary situation on account of disturbances in the Occupied Jammu and Kashmir as the people driven out from there, needed shelter and support to live on. The mention of number of persons of a family was meant to fix the extent of allowance. It was the head of the family in whose name the allotment was made. This is evident from Exh.Dl wherein the allotment has been made in the name of Hasan Muhammad and number of his family members is shown as three (he himself and his two daughters). Para. 44-A of the Rehabilitation Settlement Scheme envisages allotment to "Jammu and Kashmir refugees who can cultivate the land themselves." The dependent daughters in the year 1956, could not cultivate themselves and the land was allotted to Hasan Muhammad. It, in no way conferred any right to the land in the members of the family individually and separately. That is how Hasan Muhammad applied for proprietary rights, paid the price and was conferred proprietary rights in the land alone.
10. Mst. Naziran Bibi who was one of the family members and was defendant No,5 in the suit appeared as P.W.1 in the case and conceded the case that she was not interested to take any share in the land and that Hasan Muhammad had paid all the dues for the proprietary rights in the land. P.W.2 Talib Din who is a similar refugee from Occupied Jammu and Kashmir and had allotment of similar nature in the same village stated that he had also similar allotment as head of family of four persons and that the proprietary rights of the same have been given to him. Hasan Muhammad who appeared as P.W. 4 supported his case. Abdul Karim D.W.1 produced by the petitioner stated that the dues for the conferment of proprietary rights were paid by Hasan Muhammad and that in the presence of father permanent allotment cannot be made in the names of the children. The basic document of temporary allotment (Exh.Dl) clearly shows that the allotment was in the name of Hasan Muhammad as head of the family and the number of family members mentioned as three was for the reason to determine the extent of the land required for maintenance of the family. It is the head of the family who is entitled to permanent allotment/settlement. In view of the nature of the evidence on record, the conferment of proprietary rights in the name of Hasan Muhammad alone was perfectly valid.
11. The reliance of the learned counsel on the memorandum dated 21-11-1978 issued by the Board of Revenue is misconceived. The relevant part of the memo. Is reproduced for ready reference:-- "According to the decision taken in the meeting held on 10-3-1978 as conveyed to you vide this office Cir. Memo. No,1270-78/579-R(L) dated 30-4-1978, the proprietary rights are to be transferred in the name of the head of the family. Many representations were received, from the Jammu and Kashmir Refugees by the Minister for Kashmir Affairs and Northern Areas, expressing apprehension that with the previous decision to grant proprietary rights in the name of the head of the family, the other family members included in the allotment chits especially those who are not the successor- in-interest may be deprived of their rights. The minister has desired that the proprietary rights of the temporary allotted land may be granted in the name of all the members of the family indicated in the allotment chits if a request to this effect is received from any member of the family who is not successor in interest of the head of family."
12. Bashiran Bibi petitioner and Naziran Bibi who were the family members of Hasan Muhammad as his daughters at the time of temporary allotment/guzara allowance are his successor-in-interest (being daughters) whereas the said memorandum contemplates allotment in the name of "all the members of the family" only when they are not the successor-in-interest of the head of the family.
Admittedly, both Bashiran and Naziran Bibi are successor in interest of the head of the family, they are not entitled to have individual and separate right of allotment. However, they could inherit their Sharia share on the death of their father and opening of his succession from what was left by him.
13. The learned counsel for the petitioner admits that an owner in his life time has an absolute and unbridled right to alienate his land by means of gift. The transfer of the land by Hasan Muhamamd by way of gift made in favour of his three sons respondents Nos.2 to 4 during his life time was valid in law. The judgment relied upon by the learned counsel i,e, 1991 CLC 546, does not apply to the facts and circumstances of the case. Particularly when the memorandum dated 21-11-1978 relied upon by the learned counsel for the petitioner himself, was neither referred nor discussed or interpreted in the said case. To the contrary it lays down that when rights are conferred on a person, he becomes authorised to sell the same and there was no restraint in this behalf. The findings recorded by the !Earned appellate Court are based on correct interpretation of the memorandum, and are upheld.
14. As a result of the above discussion, the appellate order of the learned Additional District Judge, Hafizabad needs no interference. The revision petition is dismissed. No orders as to costs.
Revision .