Late Ghulam Rasool gifted 20 Kanals of land to Mst. Ayesha Sultana, his daughter-in-law through a registered sale-deed No.1404 on 2nd of April, 1977. She also acquired on the same date 2 Kanals, 2 Marlas which was sold on 26th March, 1978. Mutation No.303 was entered but rejected by Revenue Officer Halqa on 27th February, 1981. Appeal against this order was rejected on 30th August, 1981 and revision petition before Commissioner was dismissed on 7th December, 1986. She filed a revision petition in the Board of Revenue which was decided vide order, dated 12th September, 1988. The learned Member, Board of Revenue remanded the case to Revenue Officer Halqa with the following observation:- "From the perusal of record it reveals that the petitioner acquired 2 Kanals, 2 Marlas through registered sale-deed No.1403 while 20 Kanals (gift) through registered sale-deed No.1404 on 2-4- 1977 and as such she became owner on the same very day. Accordingly Mutation No.155 in respect of sale of 2 Kanals, 2 Marlas was sanctioned on 20-6-1977 whereas Mutation No.303 relating to gifted land of 20 Kanals was subsequently entered on 18-9-1980 and rejected on 27-2-1981. It is strange to note that transactions of one day were entered on different dates for implementation in the Revenue Record through mutations whereas according to the instructions, the revenue officials are bound to enter the mutations on the receipt of copies of registered deeds when they assemble at Tehsil Headquarter in the first week of each month, but these instructions were not complied in this case due to which the parties has to suffer. Though, the petitioners hid subsequently sold 2 Kanals, 2 Marlas vide Mutation No.174, dated 26-3-1978 yet she should have been shown as owner at the time of attestation of Mutation No.303 in dispute which she acquired earlier on 2-4-1977 and as such there appears to be no violation of M.L.R. 115 at the time of implementation of registered deed of gift through mutation in dispute. The order of the A.C.-II, dated 27-2-1981 thus, suffers from legal lacuna and accordingly the revision petition is accepted and all the orders of lower Courts are set aside and case is remanded to the A.C.-II for fresh decision after hearing both the parties."
2. In pursuance of these orders of the learned Member, Board of Revenue, Revenue Officer Halqa entered a new Mutation No.695 and rejected it on the ground of violation of M.L.R.115. The present respondent filed an appeal against order of A.C.-IInd Grade which was rejected by A.C./Collector vide his order, dated 17th of May, 1993. However, Additional Commissioner (Revenue), Multan Division accepted her appeal on 22nd February, 1994 and declared:- "I have no other way but to accept the present revision petition and set aside the order of A .C. IInd Grade, dated 30-4-1992 and the order of Assistant Commissioner/Collector, Chichawatni, dated 17-5-1993. The Revenue Officer Halqa is directed to attest mutation of gift and get it implemented in the Revenue Record."
3. Mst. Rabia Bibi and other heirs of late Ghulam Rasool have filed this revision petition against the aforesaid order of Additional Commissioner.
4. The issues raised in the body of revision petition and advocated by learned counsel for the petitioners are as under:- (a)The deed of gift was forged document and was got executed through misrepresentation.
Ghulam Rasul deceased never voluntarily made the transfer of property in dispute in favour of the respondent. He had himself filed a civil suit in his lifetime challenging the factum of the alleged gift and its genuineness. The suit was, however, withdrawn when Revenue Officer declined to attest the mutation.
(b)Ghulam Rasul deceased owned only 23 Kanals of agricultural land in Chak No.40/12/L, Tehsil Chichawatni, District Sahiwal. He had son Manzoor Hussain, wife Mst. Rabia Bibi and daughter Mst.
Tajan. It is, therefore, inconceivable that he would gift 20 out of his total holding of 23 Kanals in favour of Mst. Ayesha Bibi, his daughter-in-law and wife of Manzoor Hussain. It is stated that the so- called gifted land was under the cultivating possession of Ghulam Nabi, brother of Ghulam Rasool deceased as a tenant. The possession of the land was never delivered to Mst. Ayesha Bibi. The donor never asked Ghulam Nabi, tenant in cultivating possession of the land to attorney in favour of Mst. Ayesha Bibi and thus, the gift was bad in law since no declaration to this effect was made by Ghulam Rasul and no delivery of possession under the alleged gift was ever made to the donee.
(c)The alleged gift deed does not even bear correct parentage of the donor. The donor was never identified before Sub-Registrar by anyone from the Revenue Estate where the land is situated.
(d)The gift deed was not executed or registered at Chichawatni but was executed and registered at some other place to facilitate forgery.
(e)Mst. Ayesha Sultana did not own any land in Chak No.40/12-L. The gift of 20 Kanals out of 23 Kanals of land could not have been made in her favour because she was Ghair Malik in the Village.
The transfer by way of sale of 2 Kanals, 2 Marlas of land in her favour was made to enable her to receive the gifted land. She returned 2 Kanals, 2 Marlas soon after its purchase and thus, practiced fraud not only with the petitioners but also with the revenue Authorities.
5. It is stated by learned counsel for the respondent that the learned counsel for the petitioners has only narrated facts of the case and no law point has been adduced. It is stated that the petitioner had not challenged the order of learned Member in which it was held that no infringement of the provisions of M.L.R.115 was caused due to mutation of in favour of the respondent on the principle of gift deed. It is stated that -the mutation.was refused to be sanctioned on the ground that it was violative of M.L.R.115. It is stated that after the observation of the learned Member in respect of the non-infringement of M.L.R.115, it was not open for Revenue Officer while deciding the case in remand to once again refer to the provisions of M.L.R.115 as ground for refusing to sanction the mutation. The validity of the instrument of gift could not be made a ground for refusing to attest the mutation. In support of this contention, he placed reliance on PLD 1963 W:P. (Rev.) 12 and PLD 1974 Lah. 208. It was stated that in 1977, there was no Sub-Registrar at Chichawatni. In rebuttal, the learned counsel for the petitioners stated that Chichawatni was Sub-Division in 1970. As such there was a Sub- Registrar at Chichawatni in 1977.
6. It was further argued that factum of non-delivery of possession would not invalidate the gift.
Possession was not with the donor at the relevant time, but he had made his intention to divest himself of the ownership of property clear by doing all that he could do. In support of his contention, the learned counsel placed reliance on 1993 CLC 1084.
7. In main the learned counsel for the petitioners has argued that the gift deed was a forged document, which could not be incorporated in the Revenue Record owing to two grounds; firstly that the donor having a A holding of 23 Kanals could not alienate 20 Kanals out of it and secondly that the donee was not an owner in the Revenue Estate. Non-delivery of possession was also cited as ground for non-completion of the gift deed.
8. As regards violation of M.L.R.115, the difficulty is removed by observation of learned Member, Board of Revenue made in his order, dated 12th September, 1988 wherein he clearly states that "'there appears to be no violation of M.L.R.115 at the time of implementation of registered deed of gift through mutation in dispute". This, therefore, again could not be made basis for refusing to attest the mutation. A.C. IInd Grade and A.C./Collector, therefore, erred grossly in interpreting the import of the orders of the learned Member, Board of Revenue. As regards the invalidity' of the gift deed, the Revenue Authorities are not competent to quash such registered deeds. The petitioners, therefore, will have to have recourse to the Civil Court for obtaining declaration based on the points agitated before this Court to prove that the document was not implementable on the score of forgery. As regards non-delivery of possession ruling cited by learned counsel for the respondent as reported in 1986 CLC 118 that if possession is not transferred, even then the gift will not become bad in law. In 1993 CLC 1084, it is observed that "even otherwise, the delivery of possession by donor to donee is not prerequisite for the validity of the gift in all cases. If the possession could not be delivered because the same was not with the donor at the time of the execution of gift deed or for any other reason but the donor did all that he could do to divest himself of the ownership of the property gifted, non-delivery of possession would not render the gift as invalid".
For the aforesaid, no exception can be taken to the 'order of Additional Commissioner, dated 22nd of February, 1994. It is upheld. Resultantly, the revision petition fails.