P L D 1961 W (PLP)

Mutation‑Gift with condition‑Mutation may be entered Parties to challenge validity of gift in Civil Court‑Revenue Officer not to decide complicated matters. Muhammad Nadir for Petitioners. The brief facts of this case are that the property in dispute was gifted during his life‑time by Pir Bakhsh in favour of his daughter Imam Bibi with the condition that on her death his i.e., the donor's son Khuda Bakhsh will succeed. He had also in the meanwhile gifted away some of his other property in favour of his sons. This gift took place in 1902 and a mutation was entered accordingly. It was signed by the other two sons Allah Bakhsh and Imam Bakhsh whose heirs are now contesting the succession in favour of the 3rd, son Khuda Bakhsh's heirs, presumably as a token of their having accepted the position and the condition attached to the gift. Imam Bibi died in 1956 and the present dispute arose regarding succession to the gifted property. The Collector and the learned Commissioner both held that Pir Bakhsh had made a conditional gift which is not recognised by Muslim Law. Some how they also called it a will and for that reason applied section 3 of the Shariat Act, in accordance with which the property was mutated in favour of all the heirs of the three sons of Pir Bakhsh. The petitioners who are sons and daughter of Khuda Bakhsh have come up in revision on the strength of the gift made by Pir Bakhsh, The respondents could not be served in the ordinary way and a proclamation was issued against them under section 20 (3) of the Land Revenue Act. As they have not appeared in spite of the proclamation proceedings have been taken ex parte against them in this revision petition. The main point urged on behalf of the petitioners is that Pir Bakhsh had made a gift and section 3 of the Shariat Act was not applicable. This section begins as follows :‑ "In respect of immovable property held by Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out . . . ." Now Imam Bibi did not hold the property under Customary Law as her father had gifted it to her during his life‑time though with a limited interest. This section, therefore, would have not applied The second question that arises is‑whether a conditional gift of the kind is permissible under the Muslim Law. That would really be a matter for a competent Court of civil jurisdiction to determine. It may, however, be stated in general terms that Muslim Law envisages two distinct aspects of property its corpus and its usufruct. Muslim jurisprudence seems to make it competent to create a gift giving the usufruct of the property to one party with subsequent devolution of the corpus to another. Anyhow as already observed this is a complicated issue which should really be determined by a Civil Court, and it was not for the Revenue Officers to determine whether a gift of this kind was ah initio void and should not for that reason be incorporated in the revenue' They should have attested the mutation in accordance with the gift and left it for the aggrieved party to seek his remedy in al Civil Court. I would, therefore, accept this revision petition, set aside the order passed and direct that the property should be mutated in accordance with the original gift made by Pir Bakhsh in favour of the petitioners who are heirs of the third son Khuda Bakhsh. K. M. A. Petition accepted.