It is contended by learned counsel for the petitioners that inheritance opens immediately after the demise of a person. Prior to that the owner is at liberty to alienate/gift his property to anyone. In the present case, two sisters of the father of the petitioners; namely Sama Mai and Gamman Mai, had got their inheritance of 14 Bigas of land. One of the said sisters was issueless. She also gave her share to the son of the other sister namely Muhammad Rafiq. The sister of the said Muhammad Rafiq was married to Falak Sher, respondent No. 1. As such Falak Sher got 11 Bigas of land as inheritance from his wife. Muhammad Bakhsh was owner of 48 Kanals of land. He gifted this land to his three sons i.e. The present petitioners and respondent No.2, excluding the respondent No. 1. It was owing to the appreciation that Falak Sher had adequate agricultural holding. An entry was made in the mutation register but mutation could not be sanctioned owing to non--payment of District Council fee. All other requirements of law i.e. Offer, acceptance and delivery of possession in the context of gift were complete and as held in PLD 1966 W.P. (Rev.) 78, a mutation could be sanctioned even after the death of a party, if requirements of law in respect of transaction were complete at an earlier date It is stated that Lambardar of the Revenue Estate appeared before the Patwari alongwith Muhammad Bakhsh at the time of making the report that he wished to gift his property to his three sons to the exclusion of Falak Sher. The mutation, however, was sanctioned after the demise of Muhammad Bakhsh.
2. It is stated by the learned counsel for the respondents that report in Roznamcha Waqiati of the Patwari is not signed by the donor. The report is fictitious and ought not to have been relied upon by the Revenue Officer while attesting the mutation. It is stated that after the demise of Muhammad Bakhsh apprehending mischief, the present respondents submitted an application to Commissioner in the month of May pointing out that mutation on the basis of forged gift was being contemplated by the Revenue Officer in connivance with the present petitioners. This application was marked to D.C. With the direction that Falak Sher, the present respondent No. 1, should be heard and decision taken on the application. Instead of hearing Falak Sher, District Collector sent the application to Tehsildar with the direction that mutation of inheritance may be decided in an open assembly and Falak Sher should also be heard at that time. It is stated that Falak Sher was not given opportunity of hearing at the time of attestation of Mutation No.272: It is stated that directions of Commissioner were not complied with. It is argued that, as held in 1984 MLD 272, if object of making gift is to deprive heirs of their right to inherit property, 'such gift could be struck down. Since Falak Sher has right to inherit property left behind by his father, the gift should be struck down. It is stated that on the date report was recorded in Roznamcha Waqiati, Muhammad Bakhsh was on death bed. In support of this, a certificate issued by Medical Officer was submitted to the Commissioner for grant of adjournment. It is stated that the mutation was not sanctioned in the Revenue Estate in an open assembly but in the office of Revenue Officer Halqa.
3. The question involved in this revision petition is whether on the basis of the report recorded by the Patwari and same statement made by Revenue Officer on the mutation sheet in the absence of the person whose rights have been acquired is valid under law. It is an admitted fact that Mutation No.277 was attested by the Revenue Officer after demise of the asserted donor. Sub-para.
(7) of section 42 of Land Revenue Act, 1967 states:-- --- Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under subsection
(6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or members of the Union Committee, Town Committee or Union Council concerned, whose signatures or thumb- impressions shall be obtained by the Revenue Officer, on the register of mutations."
4. It is, therefore, clearly laid down that the Revenue Officer shall make the order under' subsection
(6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons. Since Muhammad Bakhsh was no longer alive when the mutation was sanctioned, it is in contravention of the mandatory provisions of law. Whether the donor and the donee had accepted the offer and delivery of possession, etc. Took place before the demise of the donor are matters which ought to have been taken to and adjudicated upon by the Civil Court. In this view of the matter, the order of Additional Commissioner is unexceptionable and as such is upheld. Resultantly, the revision petition is dismissed.