P L D 1984 Peshawar 260 (PLP)

USMAN ALI SHAH ACTG. C. J.‑This writ petition has arisen in the following circumstances :‑‑ Sardar Inayatullah Khan Gandapur respondent No. 7 herein owned con siderable landed property in D. I. Khan District. The petitioners herein are his real sons and according to them while they were minors, their father gifted to them land measuring 2,938 Kanals and 8 Marlas situate in village Gara Guldad Khan per Mutation No. 56 entered on 16‑8‑1969 and another land measuring 6,149 Kanals and 15 Marlas in the same village per Mutation No. 60 entered on 1‑10‑1969. These two gift mutations were entered with Patwari through Mir Alam Khan, the attorney of respondent No.

7. On 26‑11‑1969, the Girdawar Circle, however, made a report with respect to, these two gift mutations that the mutations in question could not be implemented, as such mutations are meant for religious and charitable purposes. The Revenue Officer was influenced by these remarks of the Girdawar Circle, there fore, he rejected the said mutations, vide his order dated 21‑9 1970. Mean while M. L. R. 115 of 1972 was promulgated according to which transfer of land in excess of twelve thousand produce index units after 20‑12‑1971 by any person would be void, unless the commission is satisfied that the transac tion was bona fide. The record shows that after the rejection of the gift mutations in question by the Revenue Officer, the petitioners filed appeals before the Collector and as the appeals were barred by limitation, the Collector condoned the appeals under section 5 of the Limitation Act and heard the appeals on merit. The Collector accepted the appeals and directed the Revenue officer to attest the mutations in question, vide his order dated 13‑5‑1972. The record further shows that after the rejection of the mutations the petitioners had also through their mother filed civil suits and the learned Senior Civil Judge passed a consent decree in favour of the petitioner, vide his order dated 7‑4‑1972. It may further be pointed out that on the promulgation of M.L.R. 115 of 1972 the question of donation of the gifted land in the present case also came up for disposal before the Land Commissioner, D.

1. Khan Division. He validated the gift transactions in the present case and observed that the Revenue Officer had wrongly rejected the gift mutations on the foolish report of the Girdawar Circle. He also agreed with the order of the Collector accepting the appeals of the petitioners against the order of the Revenue Officer rejecting the gift mutations and further took note of the declaratory decree passed in favour of the petitioner by the civil Court with respect to the gifted land. The order of the Land Commissioner, D. I. Khan is dated 9‑6‑1972. The record shows that suo motu proceedings in the case were pending before the Federal Land Commission under the provisions of Act 11 of 1977 and as the same had abated, Notification No. 11‑77/LR/1‑78, dated 23‑9‑1978 was issued restoring the suo motu proceedings before the Federal Land Commission. In the events that happened thereafter, the L. C‑I & II forms filed by respondent No. 7 on 13‑4‑1959 were examined by the Inspection Team. By going through the case in hand, the Inspection Team observed that gift mutations were rejected by the Revenue Officer before the crucial date 20‑12‑1971, that the appeals before the Collector were accepted after the said crucial date and so were the consent decree passed by the civil Court in favour of the petitioners. Having so observed, the Inspection Team reported that the gift transactions in the present case were not valid transactions and that respondent No. 7 according to the provisions of M. L. R. 115, was in possession of the excess land which should be resumed from him. The report of the Inspection Team in this behalf is dated 25‑9‑1975. The matter was then placed before the Senior Member Federal Land Commission, Rawal pindi in the exercise of the suo motu power. The report of the Inspection Team was weighed with the learned Senior Member of the Federal Land Com mission. He, therefore, set aside the order of the Land Commissioner and while holding that the gift ‑mutations were not valid remanded the case to the Deputy Land Commission, D. I. Khan with direction that he shall re deter mine the holding of the declarant in the light of his order and if any further area becomes resumable, it shall be resumed after giving due opportunity to respondent No. 7 to retain the area of his entitlement in accordance with his own choice, vide his order dated 9‑3‑1979. In support of his said order the learned Senior Member observed that no valid evidence was available on record to show that respondent No. 7 had intended the gifts before 10‑11‑1971. He pointed out that according to the power of attorney, Mir Alam attorney was not authorised to sell or alienate any land by way of gift. He also pointed out that no mention was made of the gifts in the Khasra Girdawari as well as in the Rozoamcha Waqiati. He further observed that the appellate order of the Collector accepting the appeals of the petitioner against the order of the Revenue Officer rejecting the mutations and the consent decree in the civil suits passed in favour of the petitioners will have no legal value because the appeals and the suits were filed after the crucial date viz. 20‑12‑1971. It was also contended before him that the tenants of the gifted land had voluntarily surrendered cultivation rights in favour of the petitioner after the transactions of the gifts in the present case and in this behalf entries were made in the Roznamcha Waqiati which will show the gift transactions were validly executed. The learned Senior Member ruled out this contention on the ground that the tenants were illiterate and the entries were witnessed by the attorney who had no locus standi in the matter. The petitioners feel aggrieved by the above order of the learned Senior Member of the Federal Land Commission, therefore, they have tiled the pre sent writ petition with a prayer that the said order and the other adverse orders be declared unlawful and of no legal effect. We have heard the learned counsel for the parties and gone through the material on record. A look at the impugned order will show that the learned Senior Member of the Federal Land Commission has taken note of the material placed before him superficially and did not consider the same in its proper legal respective to take pragmatic view of the matter. It is not disputed that on 16‑8‑1969 and 1‑10‑1969 when the gift mutation in question were entered in the revenue record, respondent No. 7 could competently donate the disputed land. It may be observed that even if the attorney of respondent No. 7 was not autho rised to alienate the disputed land in favour of the petitioners by way of gift, yet respondent No. 7 never raised a little thumb of objection against the act of the attorney who, according to him, approached the Patwari at the instance of respondent No. 7 to enter the mutations. It is clear from the record that respondent No. 7 has not disowned what the attorney has done on his behalf in the present case. Thus, there can be no question of fraud to be attributed to the attorney against respondent No.

7. Correct that the appellate order or the Collector and consent decrees of the civil Court in favour of the petitioners were passed after the crucial date 20‑12‑1971 but there would have been no such incidents if the Gicdawar Circle had not made I& foolish report, as the learned Land Commissioner has very rightly described it. It is conceded that gift can be made by the father in favour of his sons and the report of the Girdawar Circle that the gift is made only for charitable and religious purposes was wholly illegal. Unfortunately the Revenue Officer acted upon the said report with the result that the matter went to the Col lector in appeal and to the civil Court in civil suits whose orders were passed after the crucial date. If the Girdawar Circle had reported that respondent No. 7 should personally appear to state that he had gifted the disputed land in favour of his soul and the attorney could be believed in this behalf, respondent No. 7 would have responded to the direction of the Revenue Authorities. Even otherwise, it is clear that the Revenue Authorities were satisfied that respondent No. 7 had the intention to gift the disputed land in favour of his sons but as the Revenue Officer acted upon the wrong report of the Girdawar Circle that respondent No. 7 could not gift the land in favour of the sons, he rejected the mutations without realizing that the said report was wholly absurd. The learned Senior Member of the Federal Land Commission doubted that the tenants had knowingly surrendered cultivation rights of the disputed land in favour of the petitioners. He observed that the tenant were illiterate and no illiterate tenant would know the consideration which qualified an event for an entry in Roznamcha Waqiati nor the rationale of entries in red ink in Khasra Girdawari. He further observed that in any case, the surrender of a tenancy by the tenant although it might show something about his cultivation rights, can by no known law or means be argued to confer rights of ownership on one or the other. It is not for a tenant to decide by his surrender statement who may be considered as owner, We have not been able to agree with the above line of reasoning of the learned Senior Member of the Federal Land Commission. Assuming without holding that pursuant to the declaration of gift by respondent No. 7, donees were not put in physical possession of the disputed land, yet there was no need of surrendering physical possession. . It is not denied that at the time of gift the petitioners were minors. As the Shariat Law is abundantly clear on the point that in the case of gift by father to his minor child, no transfer of possession is required, no exception can be taken, should lathe not transfer possession of the land gifted by him to his minor child. Reference in this respect may, usefully be made to section 155 of the Mulla's Principles of Muhammadan Law which is to the following effect :‑ "No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish a bona fide intention to give." There is also a provision in this behalf in the Hedaya at page

484. What has been laid down therein is that at the time of gift by the father in favour of his infant son the gifted object must be in possession of the father e at the time of gift. It is not denied that the disputed land in the present case at the time of gift was in‑possession of respondent No. 7, therefore, he could validly gift the same in favour of his minor sons or for that matter the petitioners. The case‑law on the point is also not lacking. In Khaliq Bux and others v. Mahabir Prasad (129 I C 335) it is held by the Oudh Chief Court as under :‑ "Under the Muhammadan Law in the case of a gift by a parent to a minor child no acceptance is necessary ; the gift complete by the con tract, and it makes no difference whether the subject of the gift is in the father's hands or in that of a depository. Nor is transmutation of. possession necessary, for the possession of the parent is tantamount to that of the child." Same view has been taken in Sultan Miya v. Ajibkhatoon Bibi and others (138 I C 733 (Cal.)) in which it is held in the case of a bona fide gift by a Muhammadan father in favour of his minor sons, there is a presumption that no change of possession is necessary. In Sultan Miya v. Ajibkhatoon Bibi and others reference has been made to Muhammadan Law that in the matter of gift no writing is necessary to validate a gift: In other words, what is to be seen in the matter of gift under the Muhammadan Law is (1) whether the donor had declared an unambiguous intention to make a gift, (2) whether the gift was expressly or impliedly accepted by the donee and (3) whether possession of the property was deliver ed to the donee. It has however, bean wade clear that in the matter or gift by a Muhammadan father in favour of his minor sons, or change of possession, is necessary. In the light of the above Shari provisions' and the case‑law, we have no difficulty in holding that gift of the disputed land by respondent No. 7 in favour of his minor sons was valid gift. The gift was made on 16‑8‑1969 and on 1-10‑1969. It is conceded that on the said dates, respon dent No. 7 could validly gift the disputed land in favour of his sons and legally there was no bar against him in this behalf, as the gift was made long before the crucial date 20‑12‑1971. We have already observed that the learned Senior Member of the Federal Land Commission has treated this case super ficially. In the fact and circumstances of the case, he failed to come to a conclusion that respondent No. 7 had really intended to gift the disputed land in favour of his minor sons. We have already observed that respondent No. 7 never disowned that he had gifted the disputed land in favour of his sons which reflects on his declaration. Even otherwise, the bona fide of respondent No. 7 about his gifting the disputed land in favour of his minor sons was never doubted. This fact by itself is sufficient to show that on 16‑8‑1969 and 1‑10‑1969, respondent No. 7 had gifted the disputed land in favour of his minor sons and as there was no legal bar against him in this behalf on those dates, it is clear that the gifts were validly made by him in favour of his minor sons. In view of what has been discussed above, we hold that the impugned orders were 'unlawful amt of no legal effect. We, therefore, accept this writ petition and direct that the Mutations Nos. 56 and 60 entered on 16‑8‑1969 and on 1‑10‑1969 by which respondent No. 7 has gifted the disputed land in favour of his sons shall be attested by the Revenue Officer. There would be no order as to costs. M. Z. M. Petition accepted.