1989SCMR764 (PLP)

MUHAMMAD HALEEM, C.J.‑‑Petitioner No. 2, herein, gifted agricultural land measuring 1403 Kanais 6 Marlas situate in Syed Wala Farm, Rakh Dhala, Hadbast No. 56, Teshil and District Kasur to her minor son petitioner No. 1 on 26th April, 1971. This oral gift was entered in Roznamcha Waqiati of the same date by the Revenue Patwari and again on 28th April, 1971, an entry was made in the Register of Mutations in regard to this gift showing an acquisition of right by petitioner No.

1. Before this entry could be attested, the Revenue Patwari at the behest of respondents Nos. 3 to 22 made a false and malicious report that the gift had been cancelled, and, therefore, the mutation should be rejected. On this basis, the Revenue Officer on 5th of April, 1972, without notice to either petitioner No. 1 or petitioner No. 2 rejected the mutation On coming to know of the cancellation of the gift, petitioner No.2 sought a review of this order on 18th of April, 1972, which was granted on 26th of April, 1972 and the case was forwarded to the District Collector for necessary correction. While the above matter was pending, Martial Law Regulation 115 was promulgated and as required there under petitioner No. 2 filed her declaration form showing the aforesaid alienation by way of gift. The District Collector empowered to act as the Deputy Land Commissioner, Lahore, and before whom the review matter was pending, recommended to the Land Commissioner on 8th of June, 1972, that the gift be treated as valid under Exception 1 to the proviso to paragraph 7 of the Martial Law Regulation

115. However, as the Land Commissioner, Lahore Division, was not certain as to whether the gift should be treated as having become effective as from 26th of April, 1971 or from 5th of April, 1972 when the mutation entry was rejected, he referred the matter by order, dated 6th of July, 1972, to the Land Commissioner for clarification. After receiving instructions from the Land Commission authorities, the Land Commissioner held that the gift and its acceptance could be presumed, but as regards the delivery of possession it was doubtful as petitioner No. 1 was a minor and there was nothing to substantiate that the delivery of possession was made to his father who was his natural guardian. Accordingly, he held that the mutation was not valid in terms of the Exception provided by the proviso to paragraph 7 of Martial Law Regulation

115. Petitioner No. 2 thereupon filed an appeal before the Chief Land Commission who accepted it by order dated 31‑1‑1973 and remanded the case to the Land Commissioner for disposal after hearing the petitioners on the factum of delivery of possession which was not held to be established despite the entry in the mutation register in the absence of the donor and the donee by the Revenue Officer on 5th of April, 1972. On remand, the Land Commissioner, Lahore Division, on 30th of June, 1973, held: "In the circumstances unless the declarant can prove that the possession was physically delivered to her infant son (or his father) before 20th of December, 1971 the gift shall not be valid for the purpose of M.L.R. 115 and the P.I. Units represented by the transaction shall be counted towards the existing holding of the declarant. This she has not been able to prove conclusively. In the circumstances the mutation is not valid for purpose of M.L.R. 115." And accordingly did not accept the gift entry in the Mutation Register. Against this order petitioner No. 2 riled a revision before the Additional Chief Land Commissioner which was rejected on 17‑1‑1974. A second revision was filed before the Federal Land Commission which was heard by a Member, Federal Land Commission who, after examining the record, held that the gift made by petitioner No. 2 in favour of petitioner No. 1 could be valid only if it was accepted by his father during his minority, and as this was not done the gift was invalid. This resulted in the dismissal of the revision. Petitioner No. 1, on attaining majority in 1974, riled a review petition against the order dated 7th of June, 1974 which was dismissed on 7th of February, 1980. He next invoked the Constitutional jurisdiction of the High Court through Writ Petition No. 8079 of 1980 which was also dismissed on 5th of June, 1982, as the High Court held: "The proviso, however, excludes an alienation made by a person in favour of his heir. This provision makes it absolutely clear that there should be an alienation made by a person in favour of his/her heir before the same can be excluded. An alienation would necessarily mean, in the case in hand, an intention to make a gift, its acceptance as well as delivery of possession. As said above, this has not been done here. In this view of the matter, the proviso will not apply." As only a short question for decision was involved, notice was issued to the respondents who contested the claim of the petitioner through their counsel. It is clear from the orders of the Land Commission authorities that they had examined the legality of the gift both from the point of view of delivery of possession and also of its acceptance by the natural guardian. The High Court while dismissing the petition deliberated on the legality of the gift while upholding the orders of the Land Commission authorities. It is of relevance to mention here that it is only the existing entries in the mutation register which have to be taken into account for the purpose of Exception 1 to the proviso to paragraph 7 of Martial Law Regulation

115. Since the entry was cancelled by an order of the Revenue Officer dated 5th of April, 1972, and the matter was pending in review before the District Collector, the Land Commission authorities acted beyond their jurisdiction in holding as they did as to the invalidity of the gift for the reason that there was no evidence to establish delivery of possession or its acceptance by the natural guardian of the minor which, in our view, was a question which could only be examined by the Civil Court. A reference to the order of the Chief Land Commissioner shows that the case was remanded to the Land Commissioner for disposal on the ground amongst others that the entry had been rejected on 5th of April, 1972, without notice to the donor or the donee on the basis of a false and frivolous report that the parties had given up their intention to complete the transaction. The illegal rejection of mutation was, therefore, in issue. Nonetheless the Additional Chief Land Commissioner, Punjab, took notice of the statement of the declarants allegedly recorded by the Assistant Collector II wherein she stated that she wanted to make a gift of the land to her son, and in that view of the matter the Assistant Collector further recorded a note that "this transfer would be ineffective in view of the provisions of the Martial Law Regulation 115" and accordingly he did not verify the mutation and forwarded the matter to the Collector. The Advocate‑General relied on this statement of fact and contended that there was no gift at all as the donor herself had not affirmed the earlier oral gift. Neither the statement has been produced nor is there any order of the District Collector and what has been relied upon is a statement of the donor recorded by Assistant Collector 11 while there already existed an entry in regard to the making of an oral gift and transfer of possession which was said to be illegally cancelled and which related to an earlier transaction of an oral gift and delivery of possession in pursuance thereto. It was this matter which had to be dealt with by the Collector. The Additional Land Commissioner was, therefore, clearly in error to have taken note of the statement of petitioner No.

2. In this view of the matter, the orders of the Land Commission authorities were clearly premature until the Collector finally decided the question of the rejection of mutation in regard to the gift. Taking this into consideration, were disposed of the petition by a short order as under: " . . we would convert this petition into an appeal and allow it with the result that the orders of the Land Commission authorities and that of ;, the High Court in Writ Petition No. 8079 of 1980 are set aside and the case remanded to the Collector to determine the legality of the entry in the mutation dated 5‑4‑1972 cancelling the gift." AA./A‑413/S Order accordingly.