P L D 1970 Lahore 341 (PLP)

(3) Where under any such ivakf as aforesaid, any specified land has been dedicated for a religious, pious or charitable purpose, such land may continue to be utilized for that purpose, and shall be deemed to be owned or possessed by a religious or charitable institution for the purpose of para graph 9 (c). (4) No land shall, on and after the commencement of this Regulation, be included in or subjected to any wakf of the nature as is referred to in sub‑paragraph (1). (5) A person who comes into ownership ‑or possession of land by virtue of this paragraph shall be subject to the provisions of this Regulation as an existing owner, except that he shall not be entitled to claim the benefit of exemptions under clauses (2) and (f ) of paragraph 9 if, but for his becoming an owner of land under this paragraph, he would not have been entitled or could not have claimed the benefit of such exemptions. Explanation.‑A `beneficiary' in this paragraph does not include a future beneficiary to whom no present advantage accrues under the wakf."

4. In the instant case, we are concerned with clause (c) of subsection (2) of section 10 of the Regulation reproduced above. because it is a common‑ground between the parties that according to the wakf deed, the donor died. in India in 1926 and that he was not the sole beneficiary under the wakf. Clause (c) of subsection (2) of section 10 according to ir& simple paraphrase means that :‑ (i) the land is to be divided among the beneficiaries, (ii) from among the beneficiaries, the "Non‑heir‑bene ficiaries" are to get share in proportion to the benefit reserved for them under the wakf ; (iii) while the "heir‑beneficiaries", will receive share according to the law of inheritance, as if succession had, opened on the day the donor died, and (iv) the word "beneficiary", according, to the explanation reproduced above, does not include a future beneficiary to whom no present advantage accrues under the wakf.

5. Learned counsel for the petitioner laid emphasis on the "Explanation" attached to section 10 of the Regulation and submitted that when it says that, "a beneficiary does not include whom the benefit a future beneficiary to whom no present advantage accrues under the wakf , it means that only such persons to accrued immediately at the creation of the wakf are to be considered as beneficiaries and no person who may have become beneficiary thereafter is to be included in the concept of this tern. According to him the words "present advantage accrues under the wakf, mean advantage which should have accrued to a beneficiary in presentie at the time of the creation of the wakf or the execution of the wakf Deed and not persons who may have started receiving benefit subsequently. This argument was advancc1 for the purpose of submitting that Muhammad Mushaq Ali Khan not being a person, to whom any benefit or proportionate advantages accrued in presentie at the time of the execution of wakf Deed, he could not be given a share in the land proportionate to the benefit which he was getting when he became a mutawalli after the death of the wakf. Whether Muhammad Mushtaq Ali Khan is eligible to get a definite share in the land in dispute is a subject to which we will advert later but we must say that we cannot accept the interpretation which is being put a by the learned counsel for the petitioner on the "Explanation" under discussion Martial Law Regulation was promulgated on 9‑2‑1959. The "Explanation", to put in other words, means; that for the purpose of section 10 beneficiaries will be those who; are receiving benefit at present i.e. on 9‑2‑1959 and that it will be those persons who are to be taken note of and not (if we can use this word in the context)‑any past beneficiaries or future beneficiaries as reckoned from this date. Our reasons for so holding are manifold : (i) Firstly, the "Explanation' attached to section 10 of the Regulation is of a restrictive kind which is aimed at narrowing down the range of beneficiaries` and not to enlarge it. It is clear from the phraseology used, which says, that the term "beneficiary does not include", such and such person. The object (if we may say so) of such an "excluding clause", is obvious, and that is, that though all those persons, who may have been beneficiaries from the beginning to the end of the wakf are beneficiaries of the wakf in a general sense, but for the purpose of the law in hand, it is intended to make only those who are receiving a present advantage at the timeO when the Regulation has come into force. (ii) Secondly, the language used is "to whom no present advantage accrues", under the wakf and not "accrued". What we mean is that the word "accrues" is used in present tense and not in past tense, with the result that only those persons, advantage to whom at present is accruing, are to be considered as beneficiaries and no others. (iii) Thirdly, the words "future" and "present" are used with reference to the date of the promulgation of the Martial Law Regulation i.e., 9‑2‑1959, whereafter and from which date all private wakfs of land are to stand abolished and the lane included in those wakfs is to be appropriated in the manner laid down in the said Regulation. Appropriation is to be made for presently‑advantage‑receiving‑beneficiaries and not for any past beneficiaries or any future beneficiaries. (iv) Fourthly, in clauses (c) and (d) of subsection (2) of section 10 or the Regulation, succession is to open out from the dates mentioned therein and the land is to be distributed among the beneficiaries in existence at the time of the commencement of the: Regulation. If the intention had been to accommodate any other set of beneficiaries (e.g., past beneficiaries) then the Regulation would have, also prescribed as to how the succession of any past beneficiary was further to be regulated. Absence of a provision in this respect shoves that it is only the set of the beneficiaries for the time being, who are to get the land. The test to see whether a person was a beneficiary or not was to see whether the advantage he was receiving was being given to him under the wakf or not. The advantage under the wok may have accrued to a person right from the start of the wakf or it may have begun afterwards and as such the time of the start of that advantage is not relevant and all that is relevant is that the advantage should be one which was in operation at the time when the Regulation commenced. The phrase "benefit reserved under the wakf", in clauses (c) and (d) ibid and the phrase "present advantage accrues under the wakf", quite fit in with this interpretation and any other interpretation would make them unworkable and confusing a situation which cannot be adopted.

6. This is one aspect of section 10 of the Regulation. As would have been clear by now from a study of the said section it consists of two states. One stage is to determine who are the beneficiaries at the time when the Regulation commenced i.e., 9‑2‑1959‑an aspect in support of which we have said enough. The other stage is, that the said beneficiaries are then to be divided into two classes, namely, (i) heirs and (ii) non‑heirs. The heirship and non‑heirship is to be traced from the wakif (donor) and the date of succession in clause (c) of subsection (2) of section 10 of the Regulation is the date o the death of the donor. If a person is a present beneficiary but was not in existence when the wakif (donor) died, he will not be his heir at that time though he will remain beneficiary no doubt and will have to be considered a non‑heir‑beneficiary. Conversely, if there was an heir who was in existence at the time when the donor (wakif) died but who himself dies sub sequently and is not in the land of living on 9‑2‑1959, then he is not to be included in the panel of beneficiaries. In other words when the donor died, it is to be seen as to who among the present beneficiaries could constitute or constituted as an heirs or non‑heir of the wakif (donor). The non‑heirs will receive land in proportion to the benefit reserved for them, and heir inter se according to the law of succession. This may be illustrated by an example. Suppose on the date of the commencement of the Regulation there are sixteen beneficiaries out of whom eight are non‑heirs and eight are heirs. Further suppose that the shares of non‑heirs collectively come to twelve annas while the quota available for heir‑beneficiaries comes to four annas. The non‑heirs‑beneficiaries will further sub‑divide the quota of twelve annas inter se in accordance with their individual share and the heir‑beneficiaries will similarly further re‑distribute the quota of four annas among themselves according to their individual share of inheritance. In other words, the estate available for re‑distribution among them will be a four‑anna share while for non‑heirs it will be twelve‑anna share. The process can be explained by the following table :‑ Wakif (Donor) | Beneficiaries _________________ | _________________ | | Quota of non‑heir‑ Quota of heir beneficiaries beneficiaries | | Distribute it among them Distribute it among individually in proportion the heirs individually to the benefit reserved for according to the law each of them under of inheritance. the wakf. The above table will show that the starting point for distribution of the land is to pool the beneficiaries and out of that pool, create two sub‑pools . . one consisting of the land equivalent to the collective share of the non‑heir‑beneficiaries and the other consisting of the collective share of heir‑beneficia ries. Further split up of each of these sub‑pools is to be according to the share .of the individual beneficiary (in case of non‑heir‑beneficiaries), and according to the law of inheritance in case of heir‑beneficiaries respectively. The law of succession is to be the law prevalent at the date of the death of the wakif (donor). At this stage it will be beneficial to reproduce the wakf Deed ire extenso so that we may feel facility while making reference to its very incidents and aspects in the later parts of ,our judgment. The wakf Deed reads as follows :‑

7. It is not our intention to make any exhaustive survey of the law on the subject of private wakf (commonly known as wakf alai‑aulad) under the Muhammadan Law, and it will suffice for our purpose to state that such wakfs may have different peculiarities according to the nature and number of the beneficiaries and the manner of sharing of the profits inter se in each case. One kind of wakf is that in which the wakif is the sole beneficiary during his lifetime. See Muhammaa Shabir Ali v. Tahir Ali and others (A I R 1957 All. 94) and Faqir Muhammad v. Mst. Abda Khatun and others (A I R 1952 All. 127). In such a wakf, the income is appropriated by the wakif himself and no other person has any share in it. Another kind is that in which wakif alongwith his descendants may be the beneficiary. A third kind may be, in which the descendants are the beneficiaries but with this condition that the first generation has preference over the second and no person from the second generation is eligible to share the benefit unless all persons from the first generation are exhausted. Still a fourth kind may be in which the distribution is per stripes and not per capita, with the result that the share of each stripe becomes heritable in that line. These varieties are discussed in detail in Amir Ali's Mohammadan Law, Fourth Edn., (Vol. I), Chapter XI, headed "The Objects of a Wakf (continued) section 1, dealing with the wakf in favour of one's Children and Descendants . . . . . . Principles of construction." Following passages which occur at the pages shown against; each of them are instructive for the subject in hand :‑ (1) Page 353.‑And if a man should say `this is a wakf for (original, upon) my child and for the child of my child and for the child of the child of my child, mentioning three generations, the income is to be expended upon his Mail (children) for ever, so long as there are any descendants and is not to be applied to the poor; while one remains, the wakf is to them, and the lowest among them, the nearer and more remote being alike, unless the wakif say in making the wakf, 'the nearer is nearer', or say, 'on my child, then on the child of my child', or say, `generation after generation' (batnan‑b'aad -batn), when a beginning must be made with them with whom the wakif has begun. (2) Page 359.‑If a person were to make a wakf in favour of his children, and make no provisions declaring that upon the death of any one of them his or her share should go to his or her children, such share or interest will merge in the general pool and will be divided among the beneficiaries for the time being. (3) Pages 362‑63 ‑If a man were to make a wakf for hits or anybody else's descendants, without mentioning the order in which they should enjoy the income of the wakf, the near and the remote will take equally, in other words, the division will be per capita. For example if a man were to say, I matte this wakf in favour of Zaid's descendants in perpetuity as long as his line lasts, Zaid's children and grand‑children will be entitled to share equaly, and there will be no difference between son's children and daughter's children; they will take equally. This principle applies where no order of succession is indicated by We specification of the line or generation (batn). Where the order of the line is not given, by mentioning `generation after generation' (batnan‑b'aad‑batn), the rents and profits will be divided equally among all the descendants, male as well as female, living at the time of the distribution, the one lower in degree getting the same share as the one nearest. And as each person among them dies his share merges in the wakf estate, and "the entire usufruct is divided among the beneficiaries living at the time of the division. If the succession of lines is given, that is, the wakf is in favour of the descendants, 'generation after generation' (batnan- b'aad‑batn), in that case it would imply that the nearer line or class takes first and after them the `line' next after'. " The above passages are sufficient for our purpose and if we examine the wakf in hand, in the light of the above principles, we note that here the wakf was for the progeny of the wakif (donor) and the intention was to include among the panel of beneficiaries the descendants of the wakif how‑low‑so ever, namely, those living at the date of the wakf and also those who may be born subsequently, and there was no intention of the kind that the second generation was to come into picture, after the exhaustion of the first generation. As a matter of fact, when he made the wakf he had only one daughter Mst. Ahmadi Begum in the first generation, yet in her presence: the son of that daughter, namely, Mushtaq Ali Khan was also inclm'ed among the beneficiaries, which shows that this wakf was not to work on the basis of line after line, but simultaneously in favour of all the descendants how‑low‑soever. Another thing to be taken note of is that the share of each beneficiary was not expressly specified with the result that on the principles tabulated above, the share of each descendant‑beneficiary was to remain equal. This equality is traceable even during the lifetime of the wakif (donor), though so far as he himslef was concerned, he reserved a power to vary the manner of distribution, which is an independent concept by itself. After his death, the same equality of share was to be maintained but for the mutawalli (from his progeny) he authorised him to take a double share. The doubling of the share was for or on account of the services which the mutawalli was to perform. This is evident from the following. sentence in Para. "6‑;11" of the wakf Deed. The word dochand according to Feroze‑ul‑Lughat Urdu Jame p. 590, New Edition by Alhaj Maulvi Feroze‑ud‑Din, means `doona', 'dugna' and 'dohra' and according to Urdu‑English Dictionary by Ferozsons Ltd. (page 365), this word means, "two‑fold, double". The word "dochand" does not mean two‑third equivalent of which in Urdu is "dotlhai". The learned Land Commissioner and the learned Chief Land Commissioner misread the document when they assumed the word "dochand" so as to wear: "dotihai" or two‑third. It appears that since in the earlier: W. P. No. 927/R‑63, this Court on the basis of a translation of the above word "dochad" as two‑third had held that mutawalli was eligible to get a two‑third share, the authorities of the Land Commission adopted the same view and thus were influenced by the same though in their orders they do not expressly say so. Another reason to hold that the mutawalli was not eligible to get 2/3rd share is that that would have exhausted the bulk of the income of the wakf property leaving very little for the other beneficiaries. The total value of the property in the wakf Deed was shown as Rs. 20,000.00 (Rupees twenty thousand only) and it cannot be assumed that the wakif who was trying to achieve the benefaction of God Almighty by benefit ing his descendants would have been unfair to them in the manner of reducing their share to almost negligible portion and at the same time favouring only one of them at an exorbitant rate. Still another thing to be noticed is that the increase in the share of mutawalli, it is clearly mentioned in the above sentence, was to be for services to be rendered by him. The sentence can not be omitted from consideration and the learned Chief Land Commissioner had acted without lawful authority in doing so or in giving a different colour to the status or to the share of the mutawalli in spite of the above sentence dominantly appearing in the deed.

8. When confronted with this situation, learned counsel for the respondent argued that in wakf‑alai‑awlad, the property vests in the beneficiaries and also in the mutawalli who to all intents and purposes is the owner of the property. 1n this way, learned counsel submits that when Muhammad Mushtaq Ali Khan was given a "dochand" share, even though for services to be rendered by him, the property to the extent of that share vested in him and he became its owner as such. For this purpose be relied on Muhammad Qamar Shah Khan v. Muhammad Salamat Ali Khan (A I R 1933 All. 407) where at page 409 there occurs the following passage :‑ "In Mahomedan Law, there are two classes of wakf. One is public and the other is private. A public wakf is one for a public religious or charitable object. A private wakf is one for the benefit of the settlor's family and his descendants. Under the Musalman Wakf Validating Act of 1913 a Mahomedan may settle the whole income of the endowed property for the maintenance and support of himself and his descendants from generation to generation, provided that there is an ultimate gift to charity. To hold that a mutawolli holding a wakf property in a wakf of this kind is not a co‑sharer for the purposes of the Rent Act would be taking a very narrow view. It is true that according to the view taken in Muhammad Rustam All Khan v. Mushtaq Hussain and Narain Das Arora v. Abdul Rahim the estate in the wakf property vests in God after the creation of a public wakf. But, we doubt if it can be argued in private wakfs the estate vests in God. The correct view would be to hold that the estate vests in the beneficiaries. In case of private wakf the mutawalli is practically speaking the owner, with one limitation and that is that he cannot make a transfer of the wakf property. But in every other respects his position is the same as that of an owner. A mutawalli holding a property in the case of a private wakf cannot be said to be a mere manager or a superin tendent. A manager holds the property during the pleasure of the proprietor. But the mutawalli in private wakfs holds the property during his life. After his death mutwailiship will go to his legal heirs. If they are several heirs they will all be entitled to the profits of the wakf estate. The mutawalli in the case of a private wakf would not be accountable to any outsider in respect of the income of the wakf property. We are unable to accept the contention of the respondent that a mutawalli cannot be said to be a co‑sharer. Nor are we prepared to accept the argument of the learned counsel for the respondent that no one who is not a proprietor can be said to be a co‑sharer within the meaning of section 226, Agra Tenancy Act." The contention has no force and if we may say so with respect to the learned counsel is based on a misconception of what constitutes property and ownership in Muhammadan Law. This Court had tie occasion to explain in Mst. Khan Bibi v. Mst. Safia Begum and others (P L D 1969 Lah. 3306) at pages 357‑360 (per one of us K. E. Chauhan, J.), as to what is the concept of property in Mohammedan Law and how it differed from the English Law. We have, no desire to reappraise subject over again in any great detail and a reproduction of paragraph 4 of that judgment will serve our purpose; which is to the following effect :‑ "The Muslim Law does not recognize the splitting up of ownership of land into estates as under the English Law. In general Muslim Law draws no distinction between real and personal property. What the Muslim Law does recognize and insist upon is the distinction between the corpus of the property itself (ayn) and usufruct in the property (manafi). Over the corpus of the property the law recognizes only absolute dominion (heritable and unrestricted in point of time) but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to, any limited interests. This distinction runs although the Muslim Law of gifts ‑gifts of the corpus (hiba) gifts of the usufruct (ariyat) and usufructuary bequests. Limited interests in respect of property are not identical with the incidents of estates under the English Law. Under the Muhammadan Law they are only usufructuary interests (and not rights of ownership of any kind). Thus, in English Law a parson 'having interest in immovable property for limited periods of time is said to be the `owner' of the property during these periods. The usufruct is also a part of the corpus. On the other hand in Muslim Law, a person can be said to be an `owner' only if he has full and absolute ownership. Ownership for a limited period is not contemplated at all. If the use or enjoyment of proper, is granted to a person for life or other limited period such person cannot by said to be an `owner' during that period. The English Law this recognizes ownership of the land limited in duration while Muslim Law admits only ownership unlimited in duration but recognizes interests of limited duration in the use of the property." Now if this concept is kept in view, then it is to be remembered that all that happens in a wakf is that the wakif ties up the corpus is the name of God making him its owner and creates limited interests in its usufruct in favour of various persons. These persons, in whose favour such limited interests are created are called beneficiaries. The beneficiaries, thus, it will be seen, are not owners or part‑owner of the corpus of the property. No property vests either in them, or in the mutawalli. The mutawalli is only a Manager and a procurator of the property and cannot be called an owner of the corpus of the property. That this is so is laid down in so many authorities like Muhammad Rusta.m Ali and another v. Mushtaq Hussain and others (47 I A 224) ; Vidya Vauthi Thirtha v. Balusarni Ayyar and other, (48 I A 302) and Abdur Rahim v. Narayan Das 4urora and others (50 I A 84) where Lord Sumner observed that the wakf property does not vest in a mutawalli. It belongs to the Almighty and is in very deed "Gods Acre". The mutawalli is not the owner of the property but merely the servant of God, managing the property for the good of his creatures. See Syed Shah Muhamrnad Kazi;rr v. Syed Abi Saghir (I L R 11 Pat. 288) and Saadat Kamel Hanum v. Attornev General, Palestine (A I R 1939 P C 185). A similar discussion is contained in various contexts as well, as for example Muhammadan Law by Tayabji; Muhammadan Law by Saksena and Muhammadan Law by Mulla. In the face of authorities of so‑high‑value, it is submitted with respect that the view expressed in Muhammad Qamar Shah Khan v. Muhammad Salamat Ali Khan is not correct. Moreover, that view was expressed with reference to a special statute which was under consideration in that case and cannot be considered as a correct enunciation of the Muhammadan Law on the subject. In Haji Abdul Razak v. S. Alt Bakhsh and another (A I R 1946 Lah. 200) it was held at page 212, column 1, that :‑‑ " . . . , and. secondly, even if it was private, it was subject to the same restrictions as any public wakf, as Muhammadan Law treats both private and public wakfs alike. Their incident are practically the same in both cases, the property in both cases is inalienable and non‑heritable and both fall under the supervision of the Kazi in the same manner, ..." Then at page 213, column 2, it was held :‑ "The duties of a mutawalli may be akin to those of a trustee; he may even loosely be called a trustee, but the legal incidents governing the two are not the same. The property under trust vests in a trustee but a wakf can never vest in mutawalli. He can claim no right of ownership, or estate in the wakf, but is merely entrusted with the fulfilment of the objects, of the wakf. His position, therefore is no more than that of a superintendent or manager . . . . . ." The above passages will show that the distinction which was sought to be made in Muhammad Qamar Shah Khan v. Muhammad Salamat Ali Khan was unwarranted and has no support from any principle of Muhammadan Law. In Wakf Banarn Khudawand Karim Mahal Faiz Muhammad Khan v. Mst. Raj Kali (A I R 1938 All. 157) it was held that mutawalli is not a proprietor of a wakf property. In Hafiz Wazir Ali and another v. Ladley Begum and another (A I R 1938 Cal. 437) it was held that it is not an absolute right of a person to be appointed a mutawalli and that this is not a matter of property mean that no deviation from Sharie Rule in this respect should be made. In Amir Ali's Muhammadan Law, Volume 1, Chapter XI, page 366, the Sharie Rule on the subject is again quoted as below:- "When a wakf is made in favour of children the income is to be divided among them equally. This is according to Abu Yusuf and `the Fatwa is with him'. A condition in the wakfnama giving to one child a greater interest than the other, or to the sons more than the daughters is sinful, as it is sinful to make any difference in gifts. This is the opinion of all leading jurists. Shaikh Nur‑ud‑Din Mukaddasi, Mufti of Cairo, and Sheikh ul‑Islam Muhammad Tahtawi, Shafei Mufti of Egypt, have given decisions to the same effect, that is, when the wakif makes a wakf in favour of a class, all persons belonging to that class take equally whether they belong to the same sex or not, or whether they differ in their `roots'. For example, when :t is in favour of brothers, consanguine and uterine brothers take together and not according to their shares under the law of succession. Similarly, if a man were to say that in case of his dying without issue, the wakf would endure to the benefit of his relatives belonging to the class nearest to him in degree, and he dies leaving only one paternal uncle's son and two paternal uncle's daughters, the male and female cousins take the income in equal shares. The meaning, therefore, of the expression Faraizullah is not that the division should be according to their shares under the law of inheritance, but according to the rule laid down by the Prophet in which he declared that no preference should be shown in gifts; and consequently This will show that the wakif in the instant case did not wish to commit any sin. He wanted the shares of the descendants to be equal and only in case of the mutawalli he was given a double share and that too only for the services to be rendered by him as such. If the wakif (donor) avoided a sinful element to crop up into his wakf Deed, we should not make such a construction which tends to introduce the same again. Last but not least, on this point, if we peruse para. 4 of the wakf Deed, we note, that there the mutawalli has laid down that he is to spend one portion of the income of the wakf property on religious and charitable purposes and it, is, thereafter, that the rest is to be (inter alia) divided among the beneficiaries. If one share goes to pious and religious purposes in general and two‑third to the mutawalli, there will remain nothing for the other beneficiaries to get and the wakf will become unworkable according to its apparent tenor. It is obvious that we cannot accept such a con struction the aim of which is to let the mutawalli eat out the wakf instead of working it properly.

10. The next question is, what then in the circumstances of the case was the share of Muhammad Mushtaq Ali Khan in the property in dispute under paragraph 10 (c) of the Regulation or, as a matter of fact, of Mst. Ahmadi Begam as well? The answer to this question depends, as analysed by us in paras. 4 to 8 of our judgment, to first find out who were the beneficiaries in existence on the 9th of February 1959; what were their names; what were their relations with the wakif (donor) and what was the extent of the advantage reserved for them or each of them under the wakf. In the record before us, there are no details of this muter and unfortunately, nor has the learned Chief Land Commissioner adverted to this point or thrown any light on it. It will be after verifying the number of the beneficiaries in existence on the 9th of February 1959, and after fixing the shares of each of them in the manner indicated in paragraphs 4 to 8 of our judgment and classifying them into heir‑beneficiaries and pin‑heir‑beneficiaries, that further split up of the same or the fixation of the share of each beneficiary or of Muhammad Mushtaq Ali Khan and Mst. Ahmadi Begum can be done. After ascertainment of these shares, a further thing to be kept in mind will be that each beneficiary will be eligible to get his own respective share and not of any other beneficiary. If any beneficiary does not come forward, the Chief Land Commissioner will have to examine as to what to do with his share. It appears to us that such an unclaimed share will have to be regulated in accordance with the general law and it cannot be that the share of such a non‑claiming beneficiary will be given to any other beneficiary. In this way, it is possible that the share of Mst. Ahmadi Begum may also undergo a change from that which she has been given at the moment. At present, after giving two‑third share to Muhammad Mushtaq Ali Khan, the Chief Land Commissioner gave the whole of the residue to Mst. Ahmadi Begum on the ground that the other beneficiaries had not come forward to claim their shares. We think here also the Chief Land Commissioner has acted without lawful authority and his decision vis‑a‑vis both the parties, namely, the petitioner as well as, the respondent No. 1, is not in accordance with law on the subject.

11. Having failed to persuade us about the lawfulness of the impugned orders, in the case, learned counsel for the respondents, towards the end of his arguments submitted that the said orders were immune from scrutiny under Article 98 of the Late 1962‑Constitution on account of section 27 of the Regulation. The contention has no force as it stands concluded by the authorities of the Supreme Court reported in Nawab Haji Khair Muhammad Khan v. The State (P L D 1966 S C 604); Mst. Hajiani and 2 others v. West Pakistan Land Commissioner and 4 others (P L D 1966 S C 114) and R. S. Jhamna Dass and S others v. The Chief Land Commissioner, West Pakistan and others (P L D 1966 S C 229) where it is laid down that only such judgments and orders of the Land Commissioner Authorities (or as a matter of fact of any other Authority. or forum, which has exclusive jurisdiction to decide matters falling within its ambit), are protected which are competently passed and which do not suffer from excess of jurisdiction or refusal to exercise jurisdiction etc. In the instant case, we have seen that the impugned orders are not lawful both from the point of view of the law applicable, as also according to the record and the facts of the case. Such judgments, it is obvious, cannot claim any immunity and we have consequently no hesitation in declaring them to be without lawful authority and of no legal effect against the petitioner which we hereby do. The result is that the case shall have to be remanded and is hereby sent to the learned Chief Land Commissioner to decide it afresh, after referring to the relevant material and aspects of the mater involved in the case in the light of the observations hereinbefore made in accordance with law. We have considered it advisable to send the case to the Chief Land Commissioner so that the litigation which has lasted for the last twenty years may be concluded with his adjudication in a short space of time. The learned Chief Land Commissioner, it is hoped, will take care so as to mention the details and particulars of the land which will be affected by his order. There shall be no order as to costs. K. B. A. Petition accepted. Case remanded