' This is a suo motu revision in exercise of the powers conferred by para. 29 of the Land Reforms Regulation, 1972 and initiated in consequence of a note recorded by the Inspection Team of the Federal Land Commission.
2. The deceased declarant, who was a Government servant, purchased some land from the Barrage Department on running grant and out of this land, he gifted 4201 acres to his son. The objection has been raised that the declarant had not obtained prior permission from the Barrage Authorities as specified in the conditions of grant. The necessary permission was, however, given on 18-5.73 which is long after the crucial date of 20-12-71.
3. If I understand it correctly, the object of prior permission by the Barrage Department is to secure payments and to ensure performance of the conditions of grant whereby to protect and safeguard the interests of the Government. It is not the object of such permission to prevent a grantee from donating to his legal heirs "any right or interest in or encumbrance on," the land on running grant.
Nor can it be allowed to assume or acquire any such objectives which are likely to negate or nullify the accrued rights or interests of the citizens and I therefore, cannot allow this restriction to paralyse the otherwise bona fide transactions.
4. The effective date of the gift is the date on which all the three requirements of gift are completed i. e.
(i) offer of a gift ;
(ii) acceptance of the gift, whether express or implied by or on behalf of donee ; and
(iii) delivery of possession.
' In this case all these requirements have been met, in accordance with the provisions of section 149 of Mohammadan Law;
5. (a) Para. 1 of the gift statement expressly specified that ; "I gift my all non-kabuli land to my legal heir son Mir Zulfiqar Ali with all rights, rules, regulations, obligations as I was granted by the Government." and Para. 2 mentions:- "that all the instalments so for paid by me in connection of the land in Question may be treated as transferred in the name of my son Mir Zulfiqar Ali and the remaining will be paid by him till the land is released."
The donee has received the gift of land with all the attendant restrictions, and not free from the encumbrances, and there is no reason why it should b marred by the fact that the prior permission of the Barrage Authorities was not available at the time of making the gift. Subsequent permission, though given late, by implication, verifies and validates the alienation from the day the gift was made 1. e. From 3-9-71.
(b) In any event, section 127 of the Transfer of Property Act, 1882 provides that if an onerous gift is accepted by the donee, it is valid. Furthermore, sections 19 and 30 of the Colonisation of Government Lands Act, 1912 also lend a helping hand to this transaction.
6. In this particular case, the declarant is dead and the entire property of the deceased including the land on restricted tenure will devolve upon his legal heirs and the donee being the son will automatically be entitled to his share in the estate. It will create a patent absurdity and indeed hardship, if the legal heir was to be deprived of a gift of land which he would even otherwise receive on intestacy. The Court shirks such absurdities. Furthermore, it is always conscious of the great wisdom enshrined in the maxim that aspices furls non cunt jura.
7. It is my considered opinion that a simple condition, which is only one of the many conditions of grant, cannot by itself vitiate or impede a gift which owes its sanctity to Mohammadan Law and which is otherwise validly and properly made. The gifts to legal heirs stand at the altar of gifts and special and exclusive treatment has been meted out to such gifts by Mohammadan Law as well as by the Civil Law.
8. Para. 7 (1) (b) of the Land Reforms Regulation, 1972 provides that t "Save in cases where the Commission is satisfied that it was a bona fide transaction, the transfer of any land and the creation of any right or interest in or encumbrances on any land, made in any manner whatsoever by any person holding at any time during the period from the first day of March 1967 to nineteeth day of December 1971 (both days inclusive) an area equivalent to more than twelve thousand produce index units (calculated on the basis of classification of soil as entered in the Revenue Records for Kharif 1966 and Rabi 1966-1967), shall be and shall be deemed always to have been void, and the land so transferred or the land on which the right, interest or encumbrance was so created shall be, and shall be deemed always to have been owned or possessed, as the case may be, by the person by whom it was owned or possessed immediately before that dater ' 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 encumbrances on any land by way of gift or otherwise made by a person in favour of his heirs ' Thus the proviso (I) to para. 7 (1) (b) is express and emphatic and it repeats what is already said in para, 7 (I) (b) and asserts that- "any transfer of land or creation of any right or interest in or encumbrances on any land, by way of gift or otherwise made by a person in favour of his heirs.", shall be excluded from the mischief of para. 7 (1) (b).
9. (a) The intention of the Legislature is express, clear, cogent and congruous and there is not even an iota of ambiguity or doubt about the proviso. There are no latent or even remote possibilities of interpreting the proviso in any manner other than that the law has sanctioned and fortified the validity of gifts to legal heirs, and it has made them inviolable. The gifts to legal heirs are therefore, neither volatile nor vulnerable to any mortal blows from the fierce fists of the civil law.
(b) Section 184 (4) of the West Pakistan Land Revenue Act, 1967 was enacted simply to weed out the thick forest of absurdities which had encircled and indeed threatened the possessory/proprietary rights of tenants and grantees etc.
10. However, if the object of the provisions of the Land Reforms Regulation, 1972 was to remain subordinate or subservient to the conditions of a running grant, then such intentions must be clearly and expressly incorporated in the main body of the Regulation. In the absence of such express and unambiguous enactments, the conditions of grant stood to a position of servility and I cannot therefore infuse into them a life or power not sanctioned them by law. The conditions of grant are no more than conditions of contract and any breach of a condition of contract cannot override the express provisions of law. The conditions of grant are therefore not mandatory and cannot bind this Court which maintains a more liberal and equitable posture, and always endeavours to uphold good sense which is for ever an inseparable embodiment of law.
11. The objection about the "prior permission" of the Barrage authorities is dismissed and accordingly the notice is vacated.